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With two new appointments to the High Court pending, a controversial case over the constitutional status of Indigenous Australians, and a federal judicial conduct commission in the wings, Attorney-General Mark Dreyfus has a packed legal agenda. By Kieran Pender.

Labor set to shake up the High Court

Attorney-General Mark Dreyfus.
Attorney-General Mark Dreyfus.
Credit: Mick Tsikas / AAP Image

Last week, the great and good of the Australian legal profession gathered in Sydney. They packed into the grand Banco courtroom at the Supreme Court of New South Wales, to celebrate the life of one of the most influential Australian judges of all time, Anthony Mason. The former High Court chief justice, now 97, was the guest of honour; the gathering convened to launch a new book, Dynamic and Principled, on Mason’s enduring influence. It was a meeting of legal luminaries – current High Court Justice Stephen Gageler gave the keynote; former High Court judges Michael Kirby and William Gummow were among those in the audience.

Mason’s legacy is remarkable. He served on the High Court for 23 years, including as chief justice for eight, and remains a towering figure in Australian law almost three decades after his retirement. But just as the event in Sydney celebrated Mason’s achievements, it also served as a powerful reminder of the influence wielded by a government when it selects a new High Court justice. Judges shape the law, but governments get to appoint them.

The new Albanese government and its attorney-general, Mark Dreyfus, QC, have taken power at a time of legal flux. Most immediately, Dreyfus is already consulting on his pick to replace High Court Justice Patrick Keane, who retires later this year. Several controversial cases are currently before the High Court – there have been calls for Dreyfus to intervene and withdraw one such dispute, over the unique constitutional status of Indigenous Australians. Institutional reform also looms large, with Labor planning to establish a judicial conduct commission in the wake of high-profile sexual harassment scandals.

Since High Court judges cannot serve past the age of 70, Dreyfus will soon be appointing two new ones: Keane retires in October and Chief Justice Susan Kiefel will finish up by the end of next year. While Australia’s judicial selection process is less politicised than in the United States, the unilateral appointment power bestowed on the attorney-general means that governments tend to appoint with at least a partial nod to candidates’ judicial ideologies.

For example, the Morrison government appointed Simon Steward, a tax law expert with a black-letter judicial approach. Steward demonstrated his conservative credentials in a judgement last year in which he called into question the existence of the implied constitutional free speech protection – a doctrine that has been settled for two decades. Kirby, Australia’s most famous progressive judge, was appointed at the end of the Keating era.

Legal profession sources close to Labor suggested names under Dreyfus’s consideration include former Victorian solicitor-general Kristen Walker, who was appointed to the Victorian Court of Appeal last year; Justice Jayne Jagot, a long-serving and highly respected Federal Court judge; and NSW judges Mark Leeming, Robert Beech-Jones and Andrew Bell, the state’s recently appointed chief justice. Justin Gleeson, SC, who was the federal solicitor-general until a falling out with then attorney-general George Brandis in 2016, is another frequently mentioned candidate, as are Perth-based judge Janine Pritchard and fellow Western Australian Joshua Thomson, SC, Mark McGowan’s solicitor-general.

The decision is not easy, given the need to balance areas of legal expertise, geographic representation and diversity on the bench. “When you appoint a High Court judge, you’ve got to tick a whole lot of boxes, and often there’s compromises,” says Professor Jeremy Gans of Melbourne Law School. Gans predicts Dreyfus will pick a woman, making the bench majority female for the first time in its history. “I think that would be a really important landmark,” he says.

“The court has always had a complete absence of ethnic diversity,” he continues. “And there’s always the issue of geographic diversity. The court has been a bit short on NSW judges and had one too many Queensland judges recently – they’re going to have to work all that out.”

Associate Professor Heather Roberts, an expert on the judiciary at the Australian National University College of Law, points to Labor’s “history of appointing firsts”. Labor appointed the first woman to the bench, Mary Gaudron, during the Hawke era, and then the first chief justice outside the traditional legal heartland of NSW, Victoria and Queensland, with Perth’s Robert French in 2008. “That history suggests that Labor attorneys-general have taken seriously the task of exploring diversity in demographic and experiential attributes,” she says.

Since the retirement last year of Virginia Bell, a former public defender, the court has lacked criminal law expertise. “This is the first time the court hasn’t had a judge with significant expertise in trials or regularly hearing criminal appeals,” says Gans. As Australia’s apex appellate court, about one-quarter of the High Court’s caseload involves criminal appeals – its largest single field of work. Criminal law issues also frequently arise in constitutional cases.

Gans says it’s hard to tell if this experience deficit is problematic. “All High Court judges are really smart,” he says. “But I think the idea that a court which hears something like a quarter of its cases within one field of law, and not having any judges with deep experience in that field of law, is pretty weird.”

A spokesman told The Saturday Paper that the attorney-general is currently consulting with the legal community and had sought input from a range of stakeholders. “When he has carefully considered these responses the attorney-general will make a recommendation to the cabinet,” the spokesman said.

Another important issue in Dreyfus’s in-tray is the Montgomery case, currently before the High Court. It seeks to overturn the court’s ruling in the Love case from February 2020 – which has been compared to the landmark native title ruling, Mabo, for its constitutional significance. Love found that non-citizen Aboriginal and Torres Strait Islander peoples could not be deported given their unique connection to Country. The decision split the court four to three, with strident dissents from Kiefel, Gageler and Keane. Following the retirement of two judges in the majority, Bell and Geoffrey Nettle, the Morrison government went back to the High Court seeking to overturn the ruling – an unprecedented move given the short interval. The only comparable legal saga – over the introduction of senate representatives for the ACT and Northern Territory in the 1970s – drew a stern rebuke from the High Court at the time.

Montgomery was heard in April, but the court has not yet delivered its decision. Following the federal election, Indigenous advocates have called for Dreyfus to discontinue the case. Such a move would be unprecedented, but so too was the Morrison government’s attempt to relitigate the issue.

“The Love case picks up the journey begun by the claimants in the Mabo case,” says Eddie Cubillo, an academic at Melbourne Law School and descendant of the Larrakia, Wadjigan and Central Arrente peoples. “We should remember that the Commonwealth’s response to Mabo was to negotiate the content of a legal regime to govern the relation between settler and Indigenous law on property rights.”

In contrast, says Cubillo, the Morrison government tried to overturn Love “in the hope of taking advantage” of changes on the bench. “Is this the behaviour of a model litigant? Is this an expression of the rule of law?” he asks. “What our current government should do is withdraw their unjust appeal, and let legal pluralism develop and thrive in Australia.”

Constitutional law experts contacted by The Saturday Paper believed Dreyfus has the power to withdraw the case, consistent with High Court rules. It is unclear whether the bench could issue its judgement nevertheless, although legal sources thought that unlikely. Two years ago the High Court revoked a case, rather than issuing a decision, following the appellant’s death.

More than a dozen Indigenous non-citizens have been released from immigration detention as a result of Love, and a number remain in detention awaiting review of their entitlement to release. As recently as mid-April, days after the election was called, the Federal Court ordered the release of a Dharug man who had been detained for more than two years after his visa had been cancelled for alleged involvement with a motorcycle gang.

If Love is overturned, these people may be redetained and deported. Additionally, a source with knowledge of the situation told The Saturday Paper many “Aboriginal non-citizens have been threatened with cancellation of their visas and are nervously awaiting the Montgomery decision.”

Professor Asmi Wood, an Indigenous law expert at the ANU with Western Torres Strait heritage, says “it would be disappointing and it would be wrong” if Love is reversed, and called on the government to enact legislation to prevent the deportation of non-citizen Indigenous Australians.

A spokesperson for the attorney-general declined to comment.

Labor is also understood to be planning a judicial commission to investigate alleged misconduct by judges. Dreyfus foreshadowed this plan, first reported by Guardian Australia, during meetings with civil society groups and crossbenchers last week, as he consults on the national anti-corruption commission. The judicial commission, together with further reform to parliamentary standards, will follow.

Such a body has been called for by the Law Council, the profession’s peak body, which highlighted a federal judicial commission in its pre-election “call to parties” document. The commission would investigate complaints against federal judges – on the High Court, Federal Court, and Federal Circuit and Family Court. At the moment, complaints are dealt with on an ad hoc basis by the chief justice of each court. High-profile sexual harassment allegations – against former High Court judge Dyson Heydon and a sitting Federal Circuit Court judge, Joe Harman, who subsequently resigned – have underscored the absence of a proper complaints process. That’s been a problem for court staff, aggrieved litigants and third parties.

“In the last few years, there have been a number of serious transgressions, or alleged transgressions, by federal judicial officers that have demonstrated the inadequacies of the current system of holding judges accountable,” says UNSW Sydney’s Professor Gabrielle Appleby. “The current system falls short of fairness for the individuals involved – including the judges – and also the public’s legitimate expectations of accountability of officers in important public office.”

The need for a commission is broadly accepted within legal circles and cognate bodies already exist in some states, such as the Judicial Commission of Victoria. But Appleby says that its establishment will not be headache-free, given the constitution entrenches judicial independence.

“Separation of powers issues need to be front of mind in designing the body,” she says, but adds that they aren’t insurmountable. “If the body is carefully designed, it can enhance the constitutional position of the judiciary and public confidence in its integrity and independence.”

A spokesperson said Dreyfus “will have more to say about this matter in due course”.

This article was first published in the print edition of The Saturday Paper on July 16, 2022 as "Reordering the court".

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Kieran Pender is a writer and lawyer. He is an honorary lecturer at the ANU College of Law.

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