40 Alternative L.J. 13 (2015)
Finding a Fair Reflection on the High Court of Australia

handle is hein.journals/alterlj40 and id is 15 raw text is: 


ART CLES


FINDING A FAIR REFLECTION


ON THE HIGH COURT


OF AUSTRALIA


HARRY HOBBS


ver the last thirty years an emergent soft-
         law principle has developed concerning the
         composition of the judiciary. First clearly
enunciated in the 1983 Montreal Universal Declaration
on the Independence of Justice,' the principle of 'fair
reflection' has since been reaffirmed in numerous
international instruments and operationalised in
many domestic and international judicial appointment
procedures. The essence of this emergent principle is
neatly distilled in Article 2.15 of the 2008 Mt Scopus
International Standards on Judicial Independence, which
requires that 'the process and standards of judicial
selection shall give due consideration to ensuring a
fair reflection by the judiciary of the society in all its
aspects'. In short, judges should mirror the society over
which they exercise jurisdiction.
The appointment of Geoffrey Nettle QC to the
High Court of Australia, replacing Justice Susan
Crennan who retired in February 2015, should
concern advocates for gender equality. Justice Nettle
is certainly an eminent candidate, and regarded as
one of Australia's finest jurists, but in replacing one
of the Court's three female Justices with a man,
Attorney-General George Brandis has exemplified this
government's studied attempts to 'not just stifle but
also to reverse the progress of Australian women'.2
In this article I will examine the principle of fair
reflection and argue that it is not at odds with
the fundamental principle of judicial impartiality. I
will explore how the principle is applied in other
countries, and even implicitly adopted with respect
to geographic diversity in Australia. Finally I will note
how the extremely limited criteria for appointment
for High Court Justices is increasingly at odds with
developments in comparable jurisdictions. In particular,
Brandis' decision to jettison former Attorney-General
Robert McClelland's broad consultative approach has
amplified his prerogative powers, and is a step that
should be reversed. The absence of women on the
High Court, and indeed all Courts across Australia, is
an indictment on our society. Thankfully, it is one that
we have the power to fix.

What is the principle of fair reflection?
Legal and political theorists have long emphasised the
importance of judicial independence and impartiality as
either a formal or procedural characteristic of the rule
of law. For Locke, men (and presumably women too)
come together in civil society in order to 'avoid, and
remedy those inconveniencies of the state of nature,


which necessarily follow from every man's being judge
in his own case'.' A formal division of powers between
co-equal branches of government, as recognised
by Montesquieu and persuasively argued for in the
Federalist Papers, offers the clearest avenue for formally
guaranteeing this independence. Judicial independence
thus has two dimensions: independence from the
apparatus of the state, and impartiality towards the
parties at issue. The former institutionally secures the
latter, and both are recognised across the globe as of
paramount importance.4 However, if judges are to be
independent and impartial, then how are we to speak
of mirroring societal interests? Is the principle of fair
reflection at odds with the fundamental principle of
judicial impartiality?
Indeed, it is important at the outset to distinguish
between 'reflection' and 'representation'.
Representation can be defined broadly as meaning
'the making present in some sense of something which
is nevertheless not present literally or in fact'.' More
specifically it can be delineated between the concepts
of 'standing for' and 'acting for'. The principle of judicial
independence and impartiality leaves no room for this
second form of representation: Judges are required
to perform their duties and exercise their powers
'honourably, faithfully, impartially and conscientiously',6
to 'do right to all manner of people according to law
without fear of favour, affection or ill-will',7 and should
not be seen to act for, or as representatives of, any
particular interest. Rather the Judge is said to represent
'the law' or 'justice'. Of course, unlike the judiciary,
the duty of a politician is to act 'in the interests of the
represented in a manner responsive to them'.'
The former notion of representation, 'standing for,'
can be further delineated between symbolic and
descriptive representation. A flag does not resemble
a nation but symbolises one; a map represents the
physical configuration of a country drawn to scale.9
When we speak of 'fair reflection' we are talking about
descriptive representation. This concept requires
a body reflective of society: 'an exact portrait, in
miniature, of the people at large'.' It is this descriptive
notion of representation that underpins the fair
reflection principle; though note that 'fair' reflection
does not require exact proportion. Conceptualised
in this sense, the principle of fair reflection does
not necessarily disturb judicial impartiality. It simply
requires that in its composition, the judiciary should
mirror society in all its diversity - religious, gender,
geographical, social, ideological, and so on.


AItLJ Vol 40:1 2015 - 13


REFERENCES
i. Montreal Universal Declaration on the
Independence of Justice, art 2.13.
2. Rachel Nolan, 'Men of a Certain Age',
The Monthly (May 2014).
3. John Locke, Two Treatises of Government:
Book II ( 1821 ), Ch 7, 263 [90].
4. International Covenant on Civil and Political
Rights, art 14. i.
5. Hanna Pitkin, The Concept of
Representation (UC Press, 1967), 8-9.
6. International Court of justice, Rules of
the Court, art 4(I).
7. High Court of Australia Act 1979 (Cth)
s II, schedule.
8. Pitkin, above n 5, 209.
9. Ibid 60 and 92.
10. Ibid 60.

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