Jayne Jagot’s meteoric rise to the High Court delivers the first majority-female bench in history and a fresh, compassionate perspective. By Kieran Pender.
The High Court’s newest justice, Jayne Jagot
No one would accuse Jayne Jagot, Australia’s newest High Court judge, of being radical. She has an impressive but orthodox résumé: law firm partner, barrister, judge. Her written reasons are usually compelling and matter-of-fact, rejecting the rhetorical flourishes beloved by some.
But if her extra-curial writings are anything to go by, Jagot will bring important new perspective, imbued with compassion, to the nation’s top court. In a recent speech, she focused on this very quality: “The Value of Compassion in the Law”. Her words, delivered to a new generation of lawyers, hinted at a progressive judge willing to use her role to grapple with the law’s real-world consequences – and its ability to effect transformative change.
The speech considered two landmark decisions, 60 years apart, that were at once radical and self-evident and enabled “us to think in new ways”, Jagot said. In Donoghue v Stevenson, in 1932, the British House of Lords gave legal force to the moral proposition that we must “love thy neighbour”, establishing the law of negligence. This principle, Jagot argued, is “based on one of the most powerful ideas of what it is to be human – that we experience suffering and understand and wish to alleviate the suffering of others”.
Half a world away, in 1992, the High Court in Mabo v Queensland overturned the racist notion that Australia was terra nullius (“nobody’s land”) before the arrival of the British. It recognised for the first time the unique connection between First Nations Australians and this land. “The search for principle in Mabo resulting from the compassionate impulse drove moral action, a part of which includes the pursuit of justice,” Jagot said.
Jagot’s appointment gives the High Court a female majority for the first time in its 119-year history; its first female judge, Mary Gaudron, was appointed only in 1987. Now 57, Jagot can serve for 13 years. That gives her plenty of time to leave a mark on Australian law and add more than a hint of compassion to the High Court’s reasoning in important cases.
Indeed, Jagot’s distinctive approach shone through in a judgement she issued on Wednesday, one of her last as a Federal Court judge. In a native title case, Widjabul Wia-bal v Attorney General of New South Wales, Jagot wrote of the failure “of our country to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands” and the “exhausting, debilitating and re-traumatising” process that native title claims can entail. “When we see this evidence of community and individual pain, this anguish, this grief, particularly when manifested as community discord, we should know and understand that we are seeing the effects of the past in the present,” she continued. “We should acknowledge this pain and the sources from which it springs.”
While her rise has been meteoric, Jagot’s appointment was not unexpected. When she was elevated to the Federal Court in 2008, senior counsel Anna Katzmann delivered a speech on behalf of the Law Council at the swearing-in ceremony. Katzmann, who subsequently joined Jagot on the bench, joked that a fellow judge known for his mathematical prowess might be able to “extrapolate” the “progression implied” by Jagot’s success.
“Six years from admission to partnership,” Katzmann said, describing the unusually short interval between Jagot becoming a lawyer and joining the partnership at heavyweights King & Wood Mallesons. “Five years from partnership to the bar, three years from the bar until your first judicial appointment, two years before your appointment to this court. One year until…?”
It took more than one year for Jagot to reach the High Court. But her career trajectory, from a lawyer and barrister specialising in administrative and environmental law, brief stints on the NSW Supreme Court and NSW Land and Environment Court, and a lengthier tenure on the Federal Court, has finally fulfilled Katzmann’s prediction. Jagot will replace Justice Patrick Keane as he reaches the mandatory retirement age of 70 this month. She faces a busy docket – including a constitutional challenge to New South Wales electoral law on free speech grounds – in the months ahead.
“Jayne Jagot’s appointment is a historic moment for Australia,” Heather Roberts, an associate professor at the Australian National University College of Law, tells The Saturday Paper. Roberts points to the High Court’s common law counterparts in the United States, Canada and Britain, none of which have yet achieved a majority-female bench.
The profession has greeted the announcement with enthusiasm. “The appointment of eminent jurist Justice Jayne Jagot, a talented, clever, hard-working justice, has been widely applauded,” says Fiona McLeod, SC, a former president of the Law Council. “There is also a palpable excitement amongst many lawyers at the landmark majority of women on the court. We are curious to see how this will affect the workings of the court and its judgements. And there is relief that decades of work striving for equality has finally altered the composition of our peak institution so that women are naturally seen and their voices heard.”
Born in England to British parents who had survived the Blitz as children, a young Jagot migrated to Australia with her family and attended Baulkham Hills High School, a public school in north-western Sydney. The judge has previously spoken about the opportunities her family found in Australia. “Through its public school and university systems Australia offered opportunities that I believe would otherwise have been inaccessible to me,” she said in 2008.
Jagot studied arts at Macquarie University and then law at the University of Sydney, where, according to one account, she “attained scholarly prizes the way Roger Federer collects tennis titles”. Jagot was soon a partner at Mallesons.
“I recall her as someone who was quiet, friendly and with no air of entitlement or arrogance at all,” says a former law school classmate. “She was not just super bright, but always seemed to me to have a genuine passion for – and curiosity about – the law and its intricacies. That set her apart from most of us, who were there primarily as a means to an end.”
Jagot’s aptitude was immediately evident. “I remember thinking back then that if anyone in our class was going to make it to the High Court, it would be her,” the classmate adds. “I’m so thrilled that she did.”
One senior barrister, who joined the NSW Bar at a similar time to Jagot, tells The Saturday Paper it was obvious she was “extremely diligent and obviously capable”. Unlike some of their peers in barrister training, “she was not one of those who ended up at the leagues club after class every day,” they recall. The silk adds that, despite Jagot’s obvious ability, “she was uncharacteristically modest”.
Those close to Jagot frequently note this quality. Katzmann, at the swearing-in ceremony in 2008, described Jagot as “a modest woman with nothing to be modest about” – an inversion of Winston Churchill’s description of his successor Clement Attlee as “a very modest man with a lot to be modest about”.
She is also known for her privacy. Katzmann added, “your Honour guards your privacy so tightly that even your closest friends don’t know who you are. This got me thinking that your Honour was part of an elaborate witness protection program.”
Jagot is one half of a Sydney legal power couple. She is married to former judge Peter McClellan, KC. Jagot is a keen swimmer, a fan of English literature and a military history buff; she also serves on the board of Minds Count Foundation, a mental health charity.
Jagot’s appointment was widely tipped in legal circles (including by this paper), but it is just one piece of a judicial jigsaw puzzle that Labor must complete in the year ahead. The chief justice of the High Court, Susan Kiefel, and her counterpart in the Federal Court, James Allsop, both retire in 2023. Although their additional duties are largely administrative, and their seniority is marginal – chief justices are commonly described as “first among equals” – they play an important symbolic role. Replacing Kiefel and Allsop is a major opportunity for Labor to shape the direction of the federal judiciary.
To replace Kiefel, the first female High Court chief justice, Attorney-General Mark Dreyfus, KC, and Prime Minister Anthony Albanese are thought to have two options. By elevating Justice Stephen Gageler, a Gillard government appointment in 2012 following his tenure as federal solicitor-general, Labor could appoint another puisne justice.
Gageler is considered Kiefel’s natural successor but will himself have to retire in mid-2028 – which Dreyfus and Albanese might consider too short a period for him to shape the court. Alternatively, they could name an outsider. Recent chief justices Murray Gleeson and Robert French both assumed the role directly from other courts.
The preferred course matters because the field of candidates is much smaller than potential picks to take Gageler’s spot if he is promoted from within. Since both Keane and Kiefel hail from Queensland, and Jagot was raised in Sydney, the government is expected to favour a judge or barrister from the Maroon state – although there are no obvious chief justice candidates at the Brisbane bench or bar. The lack of criminal law expertise is also an ongoing issue for the High Court, and not addressed by Jagot’s appointment.
Jagot’s appointment came in a busy week for the attorney-general, coinciding with the introduction of the National Anti-Corruption Commission Bill, Respect @ Work-related law reform and the fallout from the Optus hack. So Dreyfus’s formal response to an Australian Law Reform Commission (ALRC) review into judicial impartiality and bias flew below the radar. But the six-page response foreshadows significant structural reform to the federal judiciary.
The government has agreed “in principle” with the commission’s recommendation for a federal judicial commission. Such a body would be able to receive and investigate complaints about judicial conduct, and recent sexual harassment allegations against current and former judges have highlighted the need for this capacity.
“I am a longstanding supporter of a federal judicial commission to deal with complaints against judges,” Dreyfus said in a statement. The task is complicated by the need to respect the separation of powers; Dreyfus has promised to consult key stakeholders. The commission is unlikely to be operational for some time.
The Law Council, which has called for a standalone judicial conduct commission – as exists in several Australian states – for decades, commended the government “for listening to the views of the profession and look[s] forward to working with them to implement these essential measures”.
A major theme of the ALRC’s report was the need for a more diverse judiciary. “It is vitally important to the legitimacy of the judiciary that it should reflect the diversity of the community it serves and that judges bring a rich and diverse series of life experiences to the bench,” says ANU’s Heather Roberts.
In its response to the report, the government accepted a recommendation to improve transparent, merit-based appointments and to collect and report data on diversity within the court system. It has made a good start with its first High Court appointment.
“Jagot brings her lived experience as a child from a migrant family and a public school education to the bench,” adds Roberts. “Leadership in law and public life generally should encompass broad experiences and not be confined to a narrow, privileged elite.”
But it remains the case that not a single person of colour has served on the High Court. “In contrast to the US and the Canadian examples, the Australian judiciary is monochromatic, and not reflective of the cultural diversity of the Australian community,” Roberts says. “Sooner rather than later, that must change.”
This article was first published in the print edition of The Saturday Paper on October 8, 2022 as "Moves like Jagot".
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