Thursday, July 31, 2008

Chief Justice appointment - Ostensibly odd

The announcement of WA's Robert French as the new appointee to the High Court, Australia's peak legal venue, surprised me for three reasons:

1) He was appointed directly as chief justice;

2) It wasn't to be NSW Chief Justice James Spigelman;

3) According to Attorney-General Robert McClelland, he was a "black letter lawyer" who "sticks to the letter of the law".

The appointment is significant to Australia in a similar way to the matter of the US Supreme Court: the High Court has the potential to be quite influential on issues of the day, often leading to parliament passing legislation to catch up, such as in the Mabo and Wik decisions on indigenous land rights.

There could be any amount of explanation for the points above. The precedent for promoting the deputy chief justice is certainly not firmly entrenched, and the decision could have been down to personal preferences of the incumbent, the age issue (mandatory retirement at 70 - a referendum outcome), or politics.

I first encountered Jim Spigelman's name when researching the origins of the NRMA (NSW's ubiquitous car breakdown service). As a university student, J J Spigelman's was one of the earliest attempts to break through the cosy boy's club of the NRMA board of directors. He was also an early activist on aboriginal rights. He, too, was appointed directly to a court's head - the Supreme Court of New South Wales - and he's widely respected. He is inevitably headed for the High Court (likely as Chief Justice); however, he may have felt he still had work to do in NSW.

As for McLelland's comment, I thought at first that PM Rudd was trying to assuage conservatives, as is his wont. But Richard Ackland's column suggests that it was simply McClelland's words that were a sop. Ackland's report of French's own words suggest rather that he will be at the judicial activist end of the scale. It's fair to say that High/Supreme Court appointees have from time to time changed their spots dramatically once ensconced. But it sounds like French has too long and strong a history for this.

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