Is the Howard Government Remaking the Court in Its Own Image - Case Study Example

CONSTITUTIONAL LAW Is the Howard Government remaking the Court in its own image? Annette Annette Has the Howard Government remade the Court in its own image? The Australian Constitution imbues the ruling Government with the power to make judicial appointments and the Howard Government, that has already chosen four of those appointees, is about to choose its fifth High Court Judge this year. Critics contend that the Howard Government has eschewed merit in favor of political affiliation in its selections, which has resulted in an increasing tendency for the Court to be legally conservative in its decisions and interpretation of constitutional law. Since the judiciary must function as a check on legislative excesses, the lack of creative interpretation by the Courts has only strengthened the hand of the Howard Government through unqualified legal support of its policies. The composition and function of the Court in the present day is different from the way it was when the Howard Government first came to power. Increasingly, allegations are being made that the judges selected by the Howard Government have resulted in a Court that is shaping legal precedent in this country to favor the conservative political policy of the Government and achieve legal support for its legislation. Constitutional law in Australia The authors of the Commonwealth of Australia Constitution were Chief Justice Griffith and Justices Barton and OConnor1 advocates of freedom from British colonialism. They favored the loose federalism of the Americans, since they deemed the Canadian model to be too centrist.2 The Australian Commonwealth Act of 19003 has handed over Constitutional control of the Privy Council to the Federal Government4, while retaining the independence of the States in other portfolios such as education and health. According to the Constitution of the Commonwealth of Australia, judicial appointments are made by the Queen or her representative5, which in effect is decided by the head of the Government in power. The independence of the judiciary6 from the executive and legislative branches of Government is an established principle in many countries, as embodied through the United Nations.7 According to United States Supreme Court Justice Sandra Day O’Connor, the sphere of authority of the judiciary must be “protected from the influence, overt or insidious, of other government actors.” 8 But in Australia, the fact that judicial appointments are akin to political appointments9 has led to a debate on whether or not the independence of the judiciary can be maintained. The United Kingdom introduced its Constitutional reform bill on June 12, 2003 to introduce “new arrangements for judicial appointments”.10 The aim of this reform bill is to ensure that there is no political interference in judicial appointments. According to Joe Ludwig, the problem with the present system of judicial appointment in Australia is the lack of transparency and accountability in the process.11 The fact that a Judge is a political appointee puts pressure on him to perform according to the political aspirations of the party that placed him in power and uphold its legislation and critics allege that this is precisely what is happening in the case of the Howard Government’s judicial appointees. Political tilt in Constitutional interpretation Judicial function may be summarized as the interpretation of the law. The basic function of the law is to protect minority rights while simultaneously ensuring the rule of the majority.12 Theories about the interpretation of the Constitution are varied. The first is the theory of textualism, wherein the interpretation is strictly on the basis of literal meaning of the words written down in the law.12 The time when the law was penned and its relevance to the present day is immaterial in this case, only the literal meaning of the words is. Textualists ascribe weight to the text and structure of the Constitution.13 However interpretation according to originalism focuses on interpreting the meaning of the law in accordance with what the lawmakers would have intended. When viewed in the context of the original framers of the Constitution, proposers and ratifiers of law, the interpretation may be said to be internationalist, but in both cases, the attempt is to interpret the spirit of the law rather than its literal meaning13. The theory of precedent is based upon the principle of “let the decision stand” and in this case, it is the past decisions rendered in similar cases which form the precedent upon which law is interpreted. Theories of progressivism and activism on the other hand focus upon the interpretation of the law in such a manner that it will take into account the social, political and economic consequences of alternative interpretations. The theory of federalism focuses upon interpreting the Constitution in a manner that will protect the rights of the minorities while upholding the will of the majority. In the context of the above, the fact that a Judge is a political appointee may impact upon his ability to interpret the law. Rather than an independent analysis, interpretation and application of the law to a particular case, the Judge is likely to be more concerned with ensuring that his judgment will uphold the legislation and policies of the Government that has put him in his position. This is precisely the argument that critics are raising in connection with the changing composition of the Court since the Howard Government came to power. Has the Howard Government remade the Courts in his own image? According to Constitutional law expert George Williams of Sydney University, Australia’s rigid party system brings in the party element into judicial appointments.9 In a comprehensive analysis of recent constitutional decisions of the High Court and the opinions of individual judges, Williams arrives at the conclusion that there is an increasing tendency for unanimous or consensus decisions that toe the conservative line and are not likely to be interpretative decisions based on Australia’s Constitution. The element of dissent is practically becoming irrelevant in the decisions of the Court.14 The Prime Minister John Howard has appointed four High Court Judges and the Court is now so legally conservative that non-conservative Michael Kirby is practically the only outsider.15 Chief Justice, Murray Gleeson, and justices William Gummow, Kenneth Hayne and Dyson Heydon form a solid united block that ensures that all judgments tilt to the conservative viewpoint and uphold the legislation set out by the Howard Government. According to George Williams, these judges vote together in one powerful block and tend to interpret the Constitution in a more literal, less creative way.17 The conservative tradition appears set to continue because candidates being proposed for appointment - as one of the judicial posts becomes vacant - are predominantly right wing, such as Susan Kiefel, who is a conservative “black letter lawyer”16 As the composition of the Court has become increasingly conservative with more judicial inductees being selected by the conservative Howard Government, the decisions that are rendered also tend to support conservative Government legislation and liberal voices such as that of Justice Kirby are becoming indistinct and ineffective in interpreting Constitutional law.15 According to George Williams, the decision rendered in the notable Ahmed Ali Al-Kateb case, wherin the Court deemed it quite proper for the Commonwealth to hold people indefinitely in detention, was predominantly Conservative fuelled and would never have occurred if the composition of the Court had been more uniform. Moreover, the Courts have also imbued the Parliament with more powers by approving state criminal laws, which further advances the conservatist cause.15 In response to this criticism, some opponents argue that since judicial appointments are made by the Government that is in power, they are a reflection of the mandate of the people and should therefore stand, rather than being subject to criticism or interference.18 Others are of the opinion that the Left has fielded candidates such as Lionel Murphy against whom allegations of corruption were made19 and this has in general reflected badly on the Left parties among members of the public, which has manifested itself in the fact that the Conservative Government continues to remain in power. The Federal Attorney General, Philip Ruddock dismisses George Williams’ claims, asserting that there is no right or left tilt in the decisions of the Courts, and making such assumptions is simplistic and unrealistic.17 However, the decisions that have been administered in recent times appear to indicate that there is indeed a Conservative tilt in the Court’s decisions and that Howard’s appointments are fashioning the Courts in the conservative image. This tendency is reflected in the discussion of the relevant cases as detailed under. Relevant cases: Discussion: The case of Al Kateb v Godwin [2004] HCA 37 (6 August 2004)20 is one the most notable cases in point. In the wake of the attacks of 9/11, the policy of many countries on terrorism has meant that Arab individuals have become the subject of discrimination, and Conservative Government policies that advocate a stricter stand against them are overpowering the judicial responsibility to ensure that the rights of such individuals are also upheld. This is evident in conflicting nature of the judgment of the Court; wherein it was stated: “In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted”20 This implies a flexibility in the interpretation of the Constitution, which is however not borne out in the decision which is based upon the literal text of Sections 196 and 198 of the Migration Act of 195820. In the special circumstances of the case where Al Katib was a stateless Palestinian immigrant who could not be deported, the Court was unable to creatvely interpret the Constitution to ensure that the rights of the Arab individual were not infringed. A literal interpretation was made by the Court based upon Section 198, that the individual was to be kept indefinitely in detention, since there was no written provision that spelt out what was to be done in the special circumstances of the case. Such a decision in effect is an encroachment on the rights of a member of a minority community and in support of the legislative policies of the Government in power, toeing the Conservative view about the danger posed by Arab individuals who may be potential terrorists. This case clearly demonstrates the Howard Governmant’s remaking in its own image. In regard to detention of unlawful aliens, Glass states that while the executive branch of Government frames the regulations in reference to aliens, in accordance with the policies of the ruling Government, it is the duty of the Courts to uphold the protection of the law for non-citizens.21 The principles of mandatory detention of unlawful aliens had already been established in the case of Chu Keng Lim, where it was deemed to be constitutional and not in contravention of Chapter III of the Constitution.22 However, although mandatory detention is constitutional in Australia, one of the issues that arose in the adjudication of this case was the application of relevant international laws and sources23 in order to creatively interpret the Constitution in concordance with the present times. But the decision echoed the view that since the text of the Migration act under Sections 18924 and 19625 did not demonstrate a clear intention to interfere with individual liberty through its provisions on detention, hence Chapter III violation did not exist and mere implications of the general text could not be accepted as a valid argument. The appellant was therefore to be confined indefinitely. In the case of Behrooz26 the lawful power of the Government to detail illegal immigrants was given precedence over the conditions under which the detainee was held. The provisions of the Migration Act were open to the issue of interpretation in the peculiar circumstances in the case of Al Kateb, but the appointees of the Howard Government who are in the majority adhered to strict textual interpretation and delivered the verdict for mandatory detention, thereby affirming the Government’s stand on aliens. In Australia, subsequent to the 9/11 attacks, border protection became an issue that was of benefit to the coalition and useful to the Howard Government in the elections.27 The restrictive public policy with regard to immigrants is echoed in the decision stated above and has been similarly echoed in other cases such as that of Al-Masri28 The relative importance of international law in the interpretation of such cases has been reduced29. Further support of the immigration policies and the general conservative bent of the Howard Government may be seen in the recent decision rendered in the case of Ruddock v Taylor.30 In these context of such decisions, it would appear that the High Court decisions have been made “in accordance with the political allegiances of the Government that appointed them.”27 Therefore, the Howard Government appears to have successfully manipulated its own policies through the Courts as well. Such an interpretation of the Constitution in relation to immigrants has been unacceptable to many.31 Justice Kirby’s was the significant dissenting opinion offered in the case and he expresses the view that in many instances, expressing a concurring view may render a judge more congenial to his fellow judges and obviate the necessity to write a contrary opinion. But in view of rapid changes that occur in society from time to time and more so with the advent of technology, there may sometimes be cases where no legal precedents are not available and in such instances it is the duty of the judge to resolve such uncertainties32 and to support a dissenting opinion which will be of benefit in the future33, although some do not support this view34. Justice Kirby’s dissent in the Al Khatib case support the view that federal authorities do not have the power to hold indefinitely in detention, a stateless person who could not be deported to his own country. Although legislative abuses of this nature may be said to be outside the purview of the Courts and the responsibility of the constituencies, nevertheless according to Justice John Barrister of Pennsylvania35, such abuses may sometimes result in “monstrous violations of the Constitution” that would seriously infringe upon the “political rights of citizens” in which case a judge may “lawfully employ every instrument of official resistance” in his reach, such as habeas corpus and mandamus, both of which were denied by the Howard-appointee strong Court in the Al Khatib case. The system of mandatory detention of unlawful immigrants was introduced in 1992, in the Howard Government’s tenure and in the case of Wooley ex parte36, the Court stated definitively, in its reference to the Migration Act of 1958; “it is not for this Court to set out to frustrate the legislation.” Thus, in the case of Wooley also, it may be noted that the tendency of the Court has been to adhere strictly to the letter of the legislation rather than interpreting it independently. Therefore, in spite of dissension from Justices such as Kirby, the solid block of the four Conservative judges mentioned elsewhere in this Paper, has often translated into the Court functioning as an instrument for the execution of the policies of the Howard Government rather than exercising independent judicial analysis and review skills, thereby rendering dissension almost irrelevant. But the issue of immigration is not the only one in which the Courts have leaned in favor of support to the Howard Government. In the case of Mulholland v. the Australian Electoral Commission37, which involved imbalances in the law and the tendency of Parliament to favor the bigger political parties, the Court again ruled in favor of the Government, as also in the case of New Crest Mining38 where the Court favored the Commonwealth over the States as far as mining rights and rights to land were concerned. On an overall basis and as put forth in the presentations of George Williams14, it may be seen from several recent cases that the decisions of the Courts are overwhelmingly in favor of the Howard Government policies. Conclusion In view of the submissions made in this Paper, it may be concluded that there can be no doubt that the Howard Government has exercised a considerable influence upon the recent decisions of the High Court – not by direct manipulation, but through the appointment of the kind of candidates who are likely to be in line with the Howard policies. The definition of merit as per current selection policies has been restricted to white, male barristers, who can hardly be said to include the widest range of qualified candidates.39 Since one more judicial post will fall vacant soon, the Howard Governemnt is actively considering candidates who have a known Conservative bent and therefore, the Court is likely to further tilt in Howard’s favor. While it is established that the independence of the judiciary from the executive is vital in the healthy functioning of a democracy, the reality is that in the case of the Australian Constitution, the separation between the judiciary and the executive has been blurred through Section 6 of the High Court of Australia Act, which has handed over the power to appoint judges into the hands of the ruling party at the head of Government. It is therefore not unnatural, that the Attorney General or head of the Government in power would make every effort to ensure that its appointments of judges are made in accordance with its own policies, to ensure that its legislative policies are also executed through the Courts, while contending that appointments of judges are made on merit. This has been amply demonstrated in the recent decisions of the High Court, in line with Howard Government policies. The role of the judiciary in a true democracy is to function as a balancing force in order to ensure that the powers of the executive branch of Government are kept within check. This requires a high level of judicial vigilance and judicial protection, by ensuring that the rule of law is upheld and that the rights of every citizen are protection against unjust, unfair or tyrannical actions of the Government and to provide ordinary citizens with a legal weapon with which to resist such interference in their fundamental rights.40 However, the recent decisions of the Court as detailed above appear to indicate that the judiciary is functioning as the legal arm of the Howard Government rather than providing an indpeendent check on Government policies. This is primarily the result of the existing procedure for judicial appointments. It is unlikely that the political tilt of the Court will change in the near future, unless the process for appointment of judges is changed, so that it is made on an independent basis, without political bias or favor. It is only through the introduction of Constitutional reforms that there is likely to be any change in the composition and decisions of the Court from a long term point of view and the pro-Howard slant of the present Court is likely to continue until such reforms are implemented. Bibliography * Walker, Geoffrey de Q. The Seven Pillars of Centralism: Federalism and the Engineers’ Case. Sir Samuel Griffith. Papers. No Date. [Online] available from http://www.samuelgriffith.org.au/papers/html/volume14/v14chap1.html; accessed Sept 12, 2005; Internet * JA La Nauze, The Making of the Australian Constitution, Melbourne: Melbourne University Press, 1972, at 17, 27-8 * Commonwealth of Australia Constitution Act, Section 122 [Online] Available at: http://scaletext.law.gov.au/html/pasteact/1/641/0/PA001470.htm; accessed Sept 12, 2005; Internet * See Hobson, John Atkinson. Imperialism. New York: James Pott & Co., 1902. [Online] available from http://www.econlib.org/library/YPDBooks/Hobson/hbsnImp14.html; accessed 31 August 2005; Internet * Section 6 of the High Court of Australia Act, 1979. (See endnote) * The Constitution of Bahrain, Section 4, Article 104. (See endnote) * Bangalore principles of judicial conduct, Commission on Human Rights resolution 2003/43 (See endnote) * O’Connor, Sandra Day, 2003. “The importance of judicial independence”.Remarks before the Arab Judicial Forum in Bahrain. [Online] available at: http://usinfo.state.gov/journals/itdhr/0304/ijde/oconnor.htm; accessed 09/12/2005; Internet * Williams, George, 2004. Judicial Appointments are political appointments. The Australian. [Online] Article available from: http://www.onlineopinion.com.au/view.asp?article=2768; Accessed 09/12/05; Internet * The “Constitution reform Act – Introduction” [Online] available at: http://www.dca.gov.uk/constitution/reform/intro.htm; accessed 09/12/2005; Internet. * Ludwig, Joe, 2005. “Howard Government, Howard judiciary, Howard legislature” Online opinion, e-journal. [Online] available at http://www.onlineopinion.com.au/view.asp?article=3607; accessed 09/12/2005; Internet * “The jurisprudence of constitutional interpretation, No date. [Online] available at: http://faculty.ncwc.edu/toconnor/410/410lect02.htm; accessed 09/12/2005; Internet. * “Theories of Constitutional interpretation” (No date). [Online] available at: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp.html; accessed 09/12/2005; Internet * Williams, George and Lynch, Andrew. (2004). The High Court on Constitutional Law: The 2004 Statistics. [Online] available at: http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_andrewLynch_georgeWilliams.pdf; accessed 09/13/2005; Internet. * Pelly, Michael, 2005. Howard’s way now reflected in High Court [Online] available at: http://smh.com.au/articles/2005/02/17/1108609348308.html?oneclick=true; accessed 09/13/2005; Internet. * Pelly, Michael, 2005. McHugh’s angels: 10 women fit for high court, says top judge. [Online] available at: http://www.smh.com.au/news/national/mchughs-angels-10- women-fit-for-high-court-says-top-judge/2005/08/18/1123958182102.html; accessed 09/13/2005; Internet * Government denies fashioning conservative High Court. Article from ABC News. [online] available at http://www.abc.net.au/news/newsitems/200502/s1306297.htm; accessed 09/13/2005; Internet. * High Court 2005 – The left is whining about the conservative High Court [Online] available at: http://www.farisqc.observationdeck.org/index.php?cat=4; accessed 09/13/2005; Internet * High Court 1985 – The left and Lionel Murphy [Online] Available at: http://www.farisqc.observationdeck.org/index.php?cat=4; accessed 09/13/2005; Internet * Al Kateb v Godwin”. Australian Migration Specialists. [Online] available at: http://www.australianmigrationspecialists.com.au/cases/immigration_cases.php?id=18 41; accessed 09/13/2005; Internet * Glass, Arthur, 2005. “Al Kateb and Behrooz” Constitutional Law Dinner 2005. [Online] Available at: http://www.gtcentre.unsw.edu.au/publications/papers/5.asp; Accessed 09/15/2005; Internet * The case of Chu Keng Lim at (2003) 126 FCR 54 * Neuman, G, 2004. “Agora: The United States Constitution and International Law” 98 The American Journal of International Law (2004) 82 * Section 189 of the Migration Act of 1954 * Section 196 of the Migration Act. * Behrooz v Secretary of the Department of Immigration (Behrooz) 78 ALJR 1057 * Henderson, Gerard, 2004. “The PM’s lack of empathy” The Age Online. Available at: www.theage.com.au/articles/2004/ 08/16/1092508365006.html?from=storyrhs; Accessed 09/14/2005; Internet. * Al-Masri (2003) 126 FCR 54 * Kartinyeri v Commonwealth (1998) 195 CLR 337, 418 * Ruddock and others v Taylor, (2003) 58 NSWLR 269; [Online] available at http://www.lexisnexis.com.au/aus/services/high_court/200506594.pdf; Accessed 09/14/2005; Internet * Kirby, M.D, 2004. "Are We all Nominalists Now?" 9 Deakin Law Review 523. Comments made in reference to recent decisions of the High Court of Australia on the word "alien" in s 51(xix) of the Constitution and "jury" in s 80 of the Constitution. * Kirby, M.D, 2005."Judicial Activism? A Riposte to the Counter-Reformation?" 11 Otago Law Review 1 * Hughes, Charles E, 1936. The Supreme Court of the United States (1936), p 68; cf A Lynch, "Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia" (2003) 27 Melbourne University Law Review 724 at pp 744- 748. * Heydon, J.D, 2004. "Judicial Activism and the death of the Rule of Law . Otago Law Review 493 * Eakin v Raub; 12 Sergeant & Rawles 330 at 356 (1825). * Wooley Ex parte applicants M276/2003 by their next friend GS(2004) HCA 49 (7 October 2004) * Mulholland v Australian Electoral Commission [2004] HCATrans 8 (12 February 2004) * Newcrest Mining (WA) Ltd & Anor v Commonwealth of Australia & Anor S78/1995 (5 February 1996) * Evans, Simon, 2005. “Diversity merited in High Court”.[Online] Available at: http://www.smh.com.au/news/Opinion/Diversity-merited-in- HighCourt/2005/05/01/1114886249643.html? oneclick=true; accessed 09/15/2005; Internet * Ely, John Hart, 1980. Democracy and Distrust , Harvard University END NOTES 5. Section 6 of the High Court of Australia Act 1979 states: “Where there is a vacancy in an office of Justice, the Attorney- General shall, before an appointment is made to the vacant office, consult with the Attorneys-General of the States in relation to the appointment.” [Online] Accessed 09/12/2005 from: http://www.austlii.edu.au/au/legis/cth/consol_act/hcoaa1979233/index.html 6. Section 4, Article 104 (a) states: “No authority shall prevail over the judgment of a judge, and under no circumstances may the course of justice be interfered with. The law guarantees the independence of the judiciary….” Bahrain Constitution. [Online] Available at http://www.oefre.unibe.ch/law/icl/ba00000_.html; accessed 09/12/05; Internet. 7. The Bangalore Principles of judicial conduct state the importance of judicial independence as follows: “Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice…” [Online] Available at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2003.43.En?Opendocument; accessed 09/12/2005; Internet 24. Section 189 of the Migration Act states that “… if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.” 25. Section 196 of the Migration Act deals with the procedure to be followed with an illegal immigrant and its provisions are as follows: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. Read More