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Without fear or favour

By George Williams - posted Tuesday, 8 July 2008

Kevin Rudd will soon announce the most important appointment he will make as Prime Minister. Murray Gleeson, Chief Justice of the High Court, will retire next month at age 70 in accordance with the Constitution. The selection of his successor is imminent.

This will only mark the start of change to the High Court bench. Justice Michael Kirby, the greatest dissenter in the history of the court, must also retire in March 2009. Over the next eight months the Rudd Government will have the opportunity to replace two of the seven High Court judges. This was one of the major spoils of the 2007 federal election.

As Australia's highest appeal court and the final arbiter of the Constitution, the High Court plays a vital, hotly contested role in applying and making Australian law. In choosing new judges, Rudd has the chance to shape the development of all areas of the law. It will also enable him to exert influence far beyond his own tenure as Prime Minister.


John Howard certainly achieved this, with five of the current judges being his appointees, while the remaining two were installed by Paul Keating. One of Howard's appointees, Justice Susan Kiefel, need not retire until 2024. Two appointments will allow Labor to begin to remake the court.

Labor will have to wait much longer to have a greater impact. Unless there are unexpected departures, Rudd will not get another chance to select a High Court judge until Justice William Gummow retires in 2012. In the event of any early elections, this might only arise if the Rudd Government reaches a third term. With three more judges then retiring after Gummow in quick succession, the period from 2012 to 2015 will allow whoever is in power to appoint more than half the High Court.

We should not expect a sea change, no matter who Rudd chooses. Even the Chief Justice only gets one vote among seven. Barring early retirements or an increase in the size of the High Court to nine (its building was constructed to accommodate an increase to that number), Howard's appointees will predominate until at least 2012.

This is not to say that those judges vote on party lines, or that they are in any way beholden to the person who appointed them. One of the greatest strengths of Australia's system of government is that we do have a truly independent High Court. Each judge takes seriously their judicial oath to ''do right to all manner of people according to law without fear or favour, affection or ill will''. While people may disagree with High Court decisions, they do not doubt its fiercely protected independence.

Nevertheless, John Howard has had an enormous impact upon the High Court by choosing like-minded people as its judges. His longevity as Prime Minister meant that he appointed six judges. In raw numbers, he trailed only prime minister Sir Robert Menzies, who appointed eight judges in the 1950s and '60s. However, it is fair to say that the Howard appointments have had the greater impact.

Howard came to office in 1996 towards the end of an era of significant change in Australian law. The court, under Chief Justices Sir Anthony Mason and Sir Gerard Brennan, played a leading role in the early to mid-1990s in protecting new rights such as freedom of political speech and in developing new frontiers for Australian law, such as by recognising native title in the Mabo case.


As prime minister, Howard opposed what he saw as an activist line of decisions by the court. He responded by appointing judges who he believed would lead the court in a different direction. He succeeded. The High Court today is a radically different institution not only in its personnel but in how it decides cases. It is far less likely to refer to the policy factors that affect its decisions and has shown little sympathy for implying new freedoms from the Constitution. While concepts like native title have not been overruled, they have been applied so narrowly as to undermine their early promise. On the other hand, the High Court has strongly continued earlier trends in allowing, in cases like WorkChoices in 2006, the expansion of federal power at the expense of the states.

All appointments to the High Court are ''political''. Governments of each persuasion select judges who they hope will match their outlook on the law. The system is designed to allow this. However, with Howard being the most notable exception, it has often proved difficult for governments to anticipate how a person will decide cases after their appointment to the High Court.

Barristers and judges on lower courts rarely have the chance to express their personal views on the major constitutional and other legal issues that come before the High Court. Appointment to the highest court can also change the way people view the law. It is prized as the highest Australian judicial office anyone can attain, the pinnacle of many a lawyer's ambition. Once appointed, a person need not seek any further preferment.

There are many examples of judges who have turned out to be very different from expectations. Justice Sir William Deane, who was appointed by the Fraser government in 1982 and served until he was appointed Governor-General in 1995, came from a background in taxation and commercial law. As a High Court judge he proved to be one of the most progressive and creative judges in Australian history and was a leading member of the Mason Court. Sir Anthony Mason himself also had a legal background and an early High Court career that suggested little about his later approach to the law. On the other hand, Justice Michael McHugh, a Hawke government appointee, proved to be far less progressive a judge than many had expected.

The problem for government is not confined to Australia, but is a feature of independent final courts of appeal around the world. When president Dwight Eisenhower appointed Earl Warren as Chief Justice of the United States Supreme Court in 1953, he expected Warren as a Republican to take a conservative approach to the law. Instead, Warren became a liberal icon for heralding legal changes that propelled the civil rights movement. Eisenhower later called the appointment ''the biggest damn-fool mistake I ever made''.

We will soon get to see what sort of approach the Rudd Government takes to Australia's highest court, and whether the Prime Minister and Attorney-General Robert McClelland have a vision for its future role. It will, however, only be after many more years that the Government will know whether its hopes for its appointees prove to be correct.

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First published in The Canberra Times on July 5, 2008.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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