Senate Reparations

INTRODUCTION
The High Court of Australia and the Supreme Court of the United States have important roles in determining the federal distribution of powers and acting as ‘Constitutional guardians’. Both courts also exercise their powers as ultimate appellate courts to safeguard liberal rights and to protect their citizens from arbitrary governmental powers under the rule of law. The quality of these courts is underpinned by the ‘impartiality, integrity, and independence’ of the judges, which depends largely on the framework of judicial appointments.

This paper argues that Australia should not adopt a similar mechanism to that used in the Supreme Court of the United States, where the Senate must confirm judicial appointments. In theory,
Nevertheless, the High Court’s appointment system has faced numerous reform proposals and scrutiny since the early 1990s. Arguably, if Australia adopts a similar mechanism to Senate confirmations, the public law principles of judicial independence and impartiality, the separation of powers and public confidence under the rule of law would be better served. However, the United States’ appointment system is problematic because the possibility of over-politicisation by the Senate means these values may not be adequately protected. Such views emphasise the inadequacy of Senate Confirmations and express the need for Australia to adopt other viable
Several legal scholars have criticized this lack of parliamentary supervision, as it allows the executive to have unfettered discretion in the appointment of judges to Australia’s highest court. Without enough legal safeguards, the separation of powers may be breached if the executive misuses the power of appointment to intervene in the judicial branch. Bryan William asserts that this risk is unlikely to occur in the United States because there is legislative control upon the executive through Senate confirmations. However, very few judges and politicians in Australia favour this approach due to the strong ‘ideological and partisan’ nature of the Senate. Former Chief Justice Anthony Mason expressed a strong opposition to Senate confirmations, stating that it serves ‘little or no purpose apart from occasionally providing a media spectacle and continuously politicizing the appointment process’. Australia does not have a complete separation of powers like the United States because some of the roles of the government overlap. There is already a simultaneous check on executive power as the Attorney-General is considered a politician and the Governor-General, who ultimately appoints judges to the High Court, is part of the legislature and the