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BY DOUGLAS MCDONALD-NORMAN

Judicial appointments of serving or former politicians were once commonplace in Australia. Thirteen members of state, federal or colonial Parliaments have been appointed to the High Court of Australia. However, the last former parliamentarian on the High Court, Lionel Murphy, passed away almost 30 years ago. (Despite having been a parliamentary candidate in 1969, incumbent Chief Justice Robert French’s experience in elected office was limited to a single term on Claremont Town Council in the early 1970s.)

Appointments of former politicians are not entirely unknown in the present day. Former parliamentarians may be found on the Federal Court (John Reeves and Duncan Kerr), the NSW Land and Environment Court (Terry Sheahan), the NSW District Court (John Hatzistergos), and the Family Court (Robert McClelland). Interestingly, no former politicians are currently serving as judges of state courts outside New South Wales; the most recent appointment of a former legislator to a state court outside New South Wales (that of Peter Maley, to the Northern Territory Magistrates Court) attracted substantial controversy, albeit stemming more from his maintenance of political ties while on the bench than for his antecedents. Throughout Australia, however, appointments of former politicians to judicial office are significantly less common than they once were.

Drawing upon more than a dozen interviews with politicians, academics and practitioners, this post examines this decline, speculates as to its causes, and offers some comments on whether we are better off because of it.

Changes within the Bar

My interviews with politicians, academics and practitioners identified a number of factors that have reduced the pool of politicians from which prospective judicial appointments may be drawn: changes within the Bar, changes within politics and changing public perceptions of politicians.

There are two senior counsel in the present federal Parliament: Attorney-General George Brandis and Shadow Attorney-General Mark Dreyfus. (Two members of the NSW Parliament, Mark Speakman and Alister Henskens, are Senior Counsel; there are no other silks in Australian parliaments at present.) By contrast, the 30th Parliament – from which Lionel Murphy was appointed to the High Court – contained seven: Gough Whitlam, Billy Snedden, Robert Ellicott, Kep Enderby, Lionel Murphy, Ivor Greenwood and Merv Everett. George Brandis has commented that few barristers of the stature of Garfield Barwick, Nigel Bowen, Lionel Murphy or Robert Ellicott – all appointed to the judiciary from Parliament – now enter politics.

In correspondence and interviews, barristers-turned-politicians identified several causes of this decline – albeit by reference to anecdotal evidence. Income disparities were identified as a significant concern, with high-level barristers now vastly out-earning politicians, especially backbenchers. Whereas barristers in previous decades may not have been required to forsake their practices in order to enter politics (offsetting salary concerns) – for example, the private practices maintained by Isaac Isaacs and Robert Menzies for much of their political careers, as well as that of H V Evatt during his time in the NSW Parliament – it is now the norm for barristers to end (or substantially curtail) active practice upon entering Parliament. NSW MLC Adam Searle, for example, has faced stiff press criticism due to his desire to retain his practice at the bar after entering Parliament.

Senior barristers are not the only class of legal practitioners who have declined to enter politics in recent years, nor, of course, are senior barristers the only individuals eligible and appropriate for appointment as judges. Nonetheless, the fact that fewer barristers with significant experience enter politics at all (or that barristers once elected are not in a position to acquire further practising experience) has significantly reduced the pool of politicians with experience sufficient to warrant their appointment to the bench.

Changes within politics

Even if not for norms and cost, modern politics presents significant barriers to practitioners seeking to pursue simultaneous legal and political careers (and hence preserve their skills and incomes). In contrast to earlier years, politics has become far more time-consuming, given the ‘24-hour-news-cycle’ and the vast quantity of legislation now considered by state and federal Parliaments. As one interviewee noted, politics, once viewed as a ‘vocation’, is now far more likely to be viewed as a ‘career’.

The increasing ‘professionalisation’ of politics does not merely impact the income of practitioners. Experienced solicitors and barristers now face far higher obstacles to preselection in light of the increasing dominance of state and federal Parliaments by men and women with prior experience in politics. Trevor Cook, describing Labor’s newly-elected MPs after the 2007 election, explained the comparative dominance of ‘a professional political class’, with only 4 of 31 new MPs having not had ‘a professional political class experience’ prior to their election.

Cook noted that such figures are apt to mislead: three of the new MPs with no previous political experience had previously enjoyed notable legal careers (Mike Kelly, Shayne Neumann and Melissa Parke), as had many with previous experience in politics (including Mark Dreyfus). However, barriers within both major political parties to gaining preselection against competition from individuals with far greater political experience (and ties within the party) present a formidable (although not insurmountable) modern obstacle to experienced legal practitioners entering politics.

A number of interviewees commented that politics has not merely become a more time-consuming profession, but a more vicious one. The level of intrusion into one’s personal life and the harsh, caustic tone of present political debate were both cited as factors preventing senior lawyers from entering politics in the modern era.

Changing public perceptions

Where senior legal practitioners in an earlier age of ‘vocational politicians’ may have been willing to sacrifice some measure of income or independence in order to gain the popular prestige due to politicians, this, too, has passed. Trust in the ethics, honesty and competence of Australian politicians has fallen, and with it some of the cachet once sufficient to offset the other disadvantages involved in political life.

In a potentially associated shift, several interviewees (including barristers, politicians and judges) asserted that political appointments to the bench have increasingly been viewed as ‘patronage’, with a presumption against the competence of appointees. The appointment of Justice Lionel Murphy may hence be considered crucial in this shift. Murphy’s appointment was vociferously condemned by the Opposition and subject to an abortive motion of censure by the Victorian Bar, with the controversy proving damaging to the Whitlam Government. Murphy’s tumultuous final years on the bench, including the establishment of a Commission of Inquiry into his alleged misbehavior, may ultimately have led future governments to shy away from appointees likely to provoke damaging political attacks or whose alleged misconduct would rebound on the political party with which the judge was associated during his or her years in politics. Similarly, the conduct of Chief Justice Garfield Barwick (who served as Attorney-General in a Coalition government prior to his appointment to the High Court) during the Dismissal has been impugned as inappropriately partisan (indeed, as evidence of his ‘relis[h] to become involved in… a political matter’[1]) to an extent that damaged the stature and perceived neutrality of the High Court – creating further incentives to seek to distance the Court from politics.

Interestingly, several of the former parliamentarians currently serving on Australian courts were appointed by governments not of ‘their party’. John Reeves, John Hatzistergos and Robert McClelland, all of whom had served as Labor MPs, were appointed to the bench by Coalition governments (albeit, in Reeves’ case, over two decades after the end of his brief parliamentary term).

Are we better off?

Former politicians can potentially play a constructive role on the bench by drawing upon their prior professional lives. In the United States, for example, the appointment of former politicians has been lauded for increasing judges’ understanding of the role and functioning of other branches of government and of the operation of policy.[2] Several interviewees expressed similar sentiments, as has George Brandis.

Countering such sentiments, it is, of course, entirely possible for prospective appointees to acquire first-hand exposure to policy-making and governance through non-elected posts – for example, through work as government lawyers (including as state or federal Solicitors-General) or through appointment to commissions of inquiry. Judges who acquire experience in government or policy through appointed positions may also be less likely to be perceived as ‘partisan’ or wedded to a particular political or ideological standpoint – a criticism levelled at both Barwick and Murphy – and thereby maintain the perceived neutrality, independence and stature of the courts.

Criticism of judicial ‘partisanship’ is not, however, necessarily inevitable or warranted. In the United States, for example, while some judges with prior experience in political life have attracted controversy for the perceived use of judicial office to promote personal political agendas (for example, Frank Murphy or William O Douglas,[3] even though Douglas never held elected office), other judges with famed political careers have rendered distinguished judicial service entirely distinct from, or even at odds with, their stances in public life. Hugo Black, a Southern populist who opportunistically joined the Ku Klux Klan to further his political career,[4] formed part of the unanimous majority in Brown v Board of Education. An Australian equivalent may be found in Latham CJ – who, despite his service as a conservative Attorney-General and Opposition Leader, was one of only two dissenters in the Bank Nationalisation case.

First-hand experience of policy formation in elected office does not necessarily mean a more ‘activist’ bench, nor the imposition of one’s personal views upon the policies of subsequent governments. Indeed, Pamela O’Connor has attributed ‘the rare convergence of views’ between Barwick CJ and Murphy J in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth with respect to the role of public officials in giving effect to ministerial directions and government policy to the fact that ‘both had served as federal Ministers’.[5] Murphy J’s reluctance to examine or critique the ‘good faith’ of a policy designed to frustrate land rights claims in R v Toohey; Ex parte Northern Land Council may be similarly ascribed to deference to the discretion of elected governments to determine policy. (Such deference to policy need not, of course, equate to deference to precedent; Murphy famously proved vigorous in his attempts to shape the common law, even amidst ‘the last period of the ascendancy of the declaratory theory’.) Similarly, Latham CJ’s dissents in the Bank Nationalisation case (noted above) and in the Communist Party case reflect an expansive view of the prerogatives of the federal legislature – regardless of whether the laws in question were consistent with the rhetoric of his political career (as in the Communist Party case) or directly contrary to such (as in the Bank Nationalisation case).

It is hence possible to regret the loss to the bench from the decline of appointments of former politicians even without personal preference for a more ‘activist’ or ‘restrained’ bench. As much as contemporary governments may legitimately seek to avoid embroiling the bench in controversies such as those which surrounded Barwick and Murphy (or, alternately, may simply decide that prospective ‘political’ appointments to the bench lack sufficient legal experience to warrant selection), and hence appoint judges with ‘non-partisan’ governmental experience to address any perceived lack of policy experience on the bench, experience in elected office should not be dismissed as an alternative, and entirely legitimate, source of such insights.

Douglas McDonald-Norman is a solicitor with Craddock Murray Neumann Lawyers. He is grateful to all the anonymous interviewees, including academics, politicians, lawyers and judges, who assisted with his research in this area. The views expressed are his own and not those of his employers. For further reading, see http://lawandotherthings.blogspot.com/2015/05/judges-with-elected-experience.html.

Suggested citation:  Douglas McDonald-Norman, ‘Politicians as Judges’ on AUSPUBLAW (13 August 2015) <https://auspublaw.org/2015/08/politicians-as-judges/>

[1] George Megalogenis, The Australian Moment: How We Were Made For These Times (2012) 84.

[2] Pamela S. Karlan, A Constitution For All Times (2013) 58.

[3] Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (2010) 429.

[4] Ibid 57.

[5] Pamela O’Connor, ‘Knowing When to Say “Yes Minister”: Ministerial Control of Discretions Vested in Officials’ (1998) 5 Australian Journal of Administrative Law 168, 175n62.