Report No. 121

Australia

5.21. The apex Court is designated as High Court of Australia and each federating State has its own highest court, designated as Supreme Court of the State. The Constitution confers power to appoint Judges of the federal judiciary on the Governor General-in-Council, which would imply according to the advice of the Cabinet. As a matter of form, these appointments are made by the Governor-General or the Governor-in-Council of the States, as the case may be. These appointments are in substance and in reality by the cabinet.

Some eligibility qualifications have been prescribed more or less governing the question of standing at the Bar, namely, practice as barrister and/or solicitor within the relevant jurisdictions. Once, these, not very exacting, requirements are met, the appointment is at the discretion of the executive. Unlike the United Kingdom where the power for advising judicial appointments is conferred on one individual, i.e. the Prime Minister in the case of most senior appointments and in the Lord Chancellor in other cases, the contrast lies in the fact that appointments do not form part of the Cabinet discussion.

In Australia, the initial nomination would usually be made by the Attorney General but the decision to make the appointment is a collective one and a specific concurrence of the Attorney-General to it is not required. To contrast it with the system adopted in the United States of America, the nomination for a seat on the Supreme Court of America is made by the President but would require ratification by two-third majority of the Senate which is a facet of public accountability of the incumbent.

This ratification is not a mere matter of form but penetrating analysis is made of the views of the proposed nominee on questions of public importance and sometimes scrutiny has led to withdrawal of nominations. This is not available in Australia where the public criticism has usually to wait until after appointment, when it is too late to be effective.1

1. James Crawford Australian Court of Law, 52 (1982).

5.22. There is a move to set up a Judicial Appointment Committee which will be examined at the relevant place.