New High Court judges a move against legal adventurism

New High Court judges a move against legal adventurism

Ronald Mizen and Michael Pelly – The Australian Financial Review – Thursday 29 October 2020

The Morrison government has put a conservative stamp on the High Court with the appointment of two justices who are expected to shift the dynamic of the court to the right.

Federal Court judges Simon Steward and Jacqueline Gleeson will join the seven-member court after what the Prime Minister described as an ‘‘exhaustive’’ process.

Justice Steward is a tax law specialist and strict black-letter lawyer, while Justice Gleeson is regarded as an orthodox judge who has eschewed any adventurism on the bench.

She is the daughter of former High Court chief justice Murray Gleeson and will be the first child of a High Court judge to also join the nation’s top court.

While some senior lawyers were privately critical of the government for not picking ‘‘superior’’ candidates, legal associations welcomed the appointments. Justice Steward, 51, will fill the vacancy left by fellow Victorian Geoffrey Nettle when he steps down on November 30.

Justice Gleeson, 54, will replace the NSW-based Virginia Bell, who does not leave the court until February 28.

Mr Morrison said the cabinet had come to a final decision on Monday night, but the announcement was delayed until after Attorney-General Christian Porter received the assent of Governor-General David Hurley yesterday morning.

It is understood cabinet settled on Justice Gleeson to fill the Bell vacancy last week, preferring her above Justice Wendy Abraham – a native South Australian who joined the NSW registry of the Federal Court in 2019. She had the support of former prime minister John Howard – who appointed Murray Gleeson chief justice in 1998 – and the backing of Federal Court chief justice James Allsop. She is renowned for her collegiality, a quality highly prized by Chief Justice Susan Kiefel.

Prior to joining the bench in 2014, Justice Gleeson worked as a solicitor and barrister specialising in administrative law, competition and consumer law, professional liability and taxation law. She took silk in 2012.

Justice Steward was the favoured candidate of Victorian conservatives who promoted his credentials as a black-letter lawyer and his close ties to current High Court judge Michelle Gordon and her husband – former high court judge and banking royal commissioner Kenneth Hayne.

Both had been appointed to the bench by Coalition governments. Justice Gleeson was the first judicial appointment of the Abbott government while Justice Steward was appointed in 2018 by the Turnbull government. The government and its supporters, including the Institute of Public Affairs, believe the appointees will curb judicial activism.

‘‘These are very good appointments which will curb the High Court’s adventurism,’’ IPA chief executive John Roskam said. A ruling in February which found those who pass a test of ‘‘aboriginality’’ — even those born overseas — could not be considered ‘‘aliens’’ under the constitution and deported on character grounds is viewed as one such example.

Outgoing justices Bell and Nettle were part of a 4-3 majority. Liberal senator James Paterson said the decision demonstrated ‘‘the need to consider judicial philosophy when appointing judges to the High Court’’.

The convenor of the Women Barristers Association Jennifer Batrouney, SC, welcomed Justice Steward’s elevation, saying black-letter didn’t mean lacking empathy.

‘‘He’s not going to go rogue on the High Court,’’ Ms Batrouney said. ‘‘But if there’s a deserving case in front of him that requires less black-letter law and more empathy, I wouldn’t be surprised if he goes with empathy.’’

The NSW and Victorian Bar Association, and the Law Council of Australia praised both appointments. Victorian Bar president Wendy Harris, QC, said both were ‘‘outstanding jurists who will make a significant contribution to the High Court for years to come’’.

The private criticism centred on Justice Steward’s narrow experience beyond tax law and Justice Gleeson’s short period as a senior counsel, which did not feature much High Court work.

Some believed the government should have chosen someone with better credentials in criminal law – Justice Bell’s speciality.

Mr Porter said the geography weighed heavily on the minds of Cabinet ministers, but there would be future opportunities for other states, including South Australia which has never had a High Court judge.

They will come with the retirement of Justice Patrick Keane in 2022 and Chief Justice Kiefel in 2024. Mr Morrison and Mr Porter thanked Justice Nettle and Justice Bell for their service.

‘‘The High Court is one of the most important institutions of our democracy,’’ Mr Morrison said. ‘‘Every Justice appointed to it carries a significant burden to uphold the laws of our land. I congratulate Justices Steward and Gleeson and I wish them all the best for their very important service.’’

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