Imagine that in a few months, perhaps following a hefty donation to the Labor Party, Attorney-General Nicola Roxon announces the appointment of the High Court's newest judge — Clive Palmer.
The Honourable Justice Palmer sets about rewriting the law in radical new ways. Directors of mining companies, His Honour holds, are not subject to regulation by ASIC because of a hitherto unrecognised 'ensuring Australia's prosperity' exception. He further decrees that disbanding the Australian Greens is constitutionally valid, being necessary for the defence of Australia against the CIA's incursions into our coal industry.
Surely such an appointment would be wrong, and could be challenged in some way? Actually, no.
Due to the impending retirement of High Court judges William Gummow and Dyson Heydon, two new judges will soon be appointed. The position is one of the nation's most important. Few wield more power over Australia's affairs, a fact recently reiterated when the High Court declared the Malaysia solution unlawful.
Yet the 'process' of High Court judge appointments is so shadowy as to barely deserve that label. High Court judges are appointed at the absolute, unchallengeable discretion of the Attorney-General and Cabinet. Unlike many other government decisions, there are no criteria the Attorney-General must take into account.
The situation is rendered more anomalous when one considers the importance Australia places on the 'separation of powers' doctrine. It is often called upon in public discourse, and treated with reverence in our constitutional law. The High Court sits at the apex of one of the 'powers', the judiciary. The Attorney-General sits close to the apex of another, the executive. And yet the Attorney-General is responsible for appointing High Court judges.
A modern-day constitutional drafter would be ridiculed for proposing a system so open to abuse.
In the Hindmarsh Island Bridge case, it was considered too great an infringement of the separation of powers doctrine to let a judge prepare a government report on the Bridge. But apparently it is no infringement at all of this doctrine to let one power choose which people the other power will consist of.
You might think this is just a theoretical problem — that in some third-world fledgling democracy, such an unaccountable, unprincipled system might be cause for concern, but in civilised Australia, we can trust