Kirby: Term limits, TV and Tasmanians

Justice Michael Kirby How to fix the High Court: Term limits, TV and Tasmanians
Media reportage of High Court decisions is truly abysmal. Unless there is something bizarre, entertaining, humorous or allegedly shocking in a decision, it is typically not reported. There is a need to lift the media game in Australia. The High Court could explore the engagement of a highly skilled court communicator for television and radio. The cases in the High Court are important. They concern values upon which there can sometimes be acute differences. Such questions should be reported and placed before the citizenry for their knowledge, judgment and, if so decided, legislative correction.

Reforming the High Court of Australia is as difficult as reforming the parliamentary institutions of our country; possibly more so. Nevertheless, in a democratic society no institution is beyond the contemplation of reform, the High Court included. The following are initiatives that might, in my view, improve its operations.

If moves are made to change the appointment procedures for the High Court, there could be no objection to suitable practitioners and judges signifying their willingness to be considered for appointment. This is now commonly done in the state and federal courts below the High Court.

But I would oppose any move to assign a final or semi-final appointment veto to retired judges or lawyers, however distinguished. It is part of the genius of our constitution that a democratic element is introduced into judicial appointments, especially at the level of the High Court, by the fact appointments are made by elected politicians.

In my opinion, well-informed elected politicians are more likely to make wise decisions on the appointment of judges than a cohort of lawyers.

Constitutional adjudication, in particular, is not a value-free zone or a purely technical skill. There is no reason to believe that lawyers with special skills in insolvency or trusts law have the essential skills for adjudicating the great constitutional conflicts in our nation. Politicians know this. Some lawyers never learn its truth.

One change that certainly needs to be made is a wider spread of appointments throughout the Commonwealth. Canada’s constitution requires at least three of the nine justices of the Supreme Court to come from Quebec. There has never been an appointment to the High Court from South Australia, Tasmania or the Northern Territory. More geographic diversity is needed, an appreciation the High Court is the final supreme court of the entire Australian nation.

A dedicated television channel should be beamed to the public, which has a right to see the High Court in action.

Media reportage of High Court decisions is truly abysmal. Unless there is something bizarre, entertaining, humorous or allegedly shocking in a decision, it is typically not reported. There is a need to lift the media game in Australia. The High Court could explore the engagement of a highly skilled court communicator for television and radio. The cases in the High Court are important. They concern values upon which there can sometimes be acute differences. Such questions should be reported and placed before the citizenry for their knowledge, judgment and, if so decided, legislative correction.

One constitutional change that I would favour would limit the length of service of justices. Ensuring change and turnover, fresh ideas and a reflection of the values of different generations, is a vital aspect of a dynamic and open-minded final national court. In my view, a term of no more than 10 years would be appropriate. This would require a constitutional amendment and I recognise the difficulty of procuring this.

Justices of the High Court should not linger on beyond their “used-by” date. The experience of most of those who have served on the court is that, after about 10 years, the same types of problems re-present themselves in new guises. Nothing is stable and certain in the law. Challenges are constantly being made to old doctrines, as their instability is demonstrated by new applications. It suggests the need for a thoroughly healthy phenomenon of renewal.

Change tends to produce anxiety and resentment in at least some old people. Which is why it is a good idea to provide for their compulsory departure. Without a little encouragement, some might never conclude that they should move on. Reversing the constitutional amendment that requires all High Court judges to retire at age 70 would be quite the wrong way to go. In my experience, most of the voices critical of the 1977 amendment for compulsory retirement in the High Court have tended to be judges.

If I had my way, there would be an appointment of occasional academic scholars to the High Court, or at least of practising lawyers who have taught and written about the theory and doctrines of the law. This is the approach now taken in the highest courts in Britain, Canada, New Zealand and South Africa.

If re-expression and re-conceptualisation of basic principles of law are not performed by the final court, everyone down the line gets the message. Old rules are mechanically applied despite the existence of new and changed circumstances. Innovation, which is the genius of the common law’s judicial tradition, is under-valued. The law is fossilised. The complacent win the day. All this is realised in other final courts. The Australian High Court should not be left behind.

This is an edited extract ( HERE )from the inaugural Neville Wran Lecture, delivered at Parliament House in Sydney last night by the High Court judge Michael Kirby.