The appointment process to the UK Supreme Court has set an important precedent this year, not once, not twice or even three times, but on four occasions. There had been calls for greater diversity on the bench including from that Court’s own recently retired President, Lady Hale, who said that the people of Britain need to be able to recognise themselves in their judges rather than seeing them as “beings from another planet”. But the four vacancies that have arisen in 2020 have been filled by four more beings from that other planet, Lords Hamblen, Leggatt, Burrows and Stephens, all born in the UK and educated at traditional British institutions.
The UK government has sent a message that the judicial appointment process is to remain immune from identity politics and its associated dangers and we can only hope that Prime Minister Scott Morrison and Attorney-General Christian Porter have taken heed. At the High Court of Australia, four of the seven Justices will reach the mandatory retirement age within the next three-and-a-bit years. What considerations will guide the government in its search for appointees? Maybe it will look for black letter constitutionalists in order to redress the activism of the Court which was exhibited as recently as February this year in Love v The Commonwealth. Or it might take geographical considerations into account given long-standing jealousies associated with the fact that 75 per cent of the Justices who have been appointed to the Court since its inception in 1903 have come from only two states, New South Wales and Victoria. But what about the considerations with which most current media commentary is exclusively concerned; namely, ethnicity, gender, sex, sexual preference, religion, and other personal characteristics that are used to define particular community groupings?
This is not a new debate in Australia. In 1987 the newly retired Chief Justice, Sir Harry Gibbs, in terms more sedate than those used by Baroness Hale, framed it in terms of whether the Court needs to be representative of society with respect to its values, or reflective of it insofar as the people need to be able to see their identities in the persons of the judges, and since that time the ‘reflective argument’ has become a clarion call amongst the progressive Left of the legal profession. As in England, some of the most animated voices have been those of white judges who, like Lady Hale, are either retired or on the cusp of retirement, but they also include the spokespersons for many of the Law Societies and Bar Associations around the country, most of whom see no issue in their advocating progressive causes. The current composition of the High Court, on a biological sex count, is four men and three women, with one of the women, Susan Kiefel, being the Chief Justice. However, last week another female member of the Australian judiciary, the Chief Justice of the Supreme Court of the Australian Capital Territory, Helen Murrell, pointed out that diversity in the judiciary is “not just about gender equity but all groups within the community” and, driving the message home, the President of the Law Council of Australia, Pauline Wright, said that “promoting diversity in the judiciary is not some esoteric ideal”.
What does this ideal judiciary truly look like? Given that there seems to be a reluctance on the part of the progressives to discuss it in plain terms, let me address the elephant in the courtroom. Their ideal judiciary is one where as many minority groups as possible see themselves mirrored in either the observable physical characteristics of the judges or their publicly known personal proclivities. When schools around the country take their students on excursions to Canberra that include a visit to the High Court, no longer are these children, upon being ushered in to the public gallery, to be forced to behold seven judges all white anglo and sis gender. They are to be able to see and recognise the characteristics of all types of Australian citizens. Such diversity, the argument goes, will command further respect for an already noble profession and various lawyer groups in Australia are already lining up to play their part. Associations such as the Asian Australian Lawyers Association, the Australian Muslim Legal Network, and the Indigenous Lawyers Association of Queensland all advocate for diversity and the professional advancement of their members.
But, be careful what you wish for. To be clear, the conservative counter-argument does not suggest that any one appointment from a minority group would be without merit. Rather, it suggests that once the appointment process makes, or is perceived to make, purposeful concessions to identity politics, the descent into legal mayhem could be rapid. Given that no section of society could fairly be excluded, the appointment process could degenerate into a never-ending game of minority appeasement. Candidates could run on identity-based platforms and, whether they do or not, once appointed they will be looked upon as legal guardians for their particular group and will be expected to show favour accordingly. Worse, once wokeness takes a hold of the Court, it is not inconceivable that past judgements could begin to be upheld or overturned less on legal principle than on their real or imagined racism, sexism or other bigotry, bearing in mind that almost all of these judgments have been written by white males, the voice of the oppressor. The rewriting of history will not necessarily exempt the All England Reports and the Commonwealth Law Reports of Australia and in this way the English common law and its time-honoured doctrine of precedent could swiftly unravel.
The legal communities of South Australia and Tasmania are bristling over the fact that they have never had a candidate appointed to the High Court but this geographical debate is suddenly less significant. In the period that lies ahead the challenge for the Morrison-Porter government is to withstand the forces of the progressive Left as Britain has done.