Apres nous le deluge?
Tuesday, May 29, 2012
Justinian in Abel Magwitch, Bill Gummow, Dyson Heydon, High Court, Judicial selection

Change is in the air ... Abel Magwitch contemplates the forthcoming reconfiguration of the High Court ... A plea that the NSW and Victorian bars not be overlooked ... Doctrinal questions in play just as Gummow and Heydon are needed 

Reconfiguration pending

THE retirement in quick succession of Bill Gummow (October 2012) and Dyson Heydon (March 2013) may mean a large alteration in the way traditional, "black letter" topics are treated by the High Court.

That is, unless the two retirees are replaced by kindred spirits.

With the government in trouble, it seems likely that the Attorney General would use the opportunity to cement a more radical, and "left-leaning" team in place before the next election.

Possible female replacements for the dynamic duo would include Tait JA from Victoria, and McClure JA from Western Australia. Both tick all relevant boxes and would avoid any accusation of "doing a Piddington".

The popular press endlessly clamours for more "diversity" on the court.

Perhaps someone from Devon, or Burnie, or Ceduna, or Geraldton, whose native tongue is Maltese and hitherto has gone unrecognised.

What these arguments fail to recognise is that legal talent, like talent in cricket, or opera singing, tends to gravitate naturally to the largest conurbations where it can be most exercised and rewarded.

Sure it is that Kant never ventured further than 40 miles from Konigsburg; that Shakespeare wrote all his plays after leaving Stratford as a glover's son; and that ancient Athens (adult male population 50,000) produced Aeschylus, Euripides, Sophocles, Socrates, and Pericles in short order.

But that merely demonstrates the fact that god's genetic bounty is indifferently spread. It does not mean that the best attorney in Peoria is likely to be better than the best attorney in Chicago.

So, it is more than likely that the "best" lawyer will be found among the upper reaches of the Victorian and New South Wales bars, whose members are daily tested in public before astringent tribunals.

It is for this reason that the appointment of a first-class candidate from Cairns would occasion some disquiet, since he or she has not been tested in the bitter crucible of experience.

A wily Attorney General could seek to deflect any criticism by an adroit "bundling" of simultaneous appointments.

She might nominate someone slightly left field and probably female, to allow the female Attorney to point to the fact that for the first time in the common law world a majority of a final appellate court is female.

This bold move could be complemented with the appointment of a solid "black letter" lawyer who is beyond reproach in the eyes of the denizens of the Australia Club and Phillip Street.

Allsop P springs to mind, as does the current Commonwealth solicitor general.

There is a big advantage in taking someone who is already battled hardened in an intermediate court of appeal.

It is one thing to be able to philosophise about a topic over red wine, another entirely to produce 80 paragraphs in short order when the chief justice calls for offers to do an initial draft.

For that reason, there is no prospect of any academic or other dilettante being invited to sit on the High Court.

There is ample scope for such an appointment at the intermediate appellate level and it would probably assist productivity if the odd superannuated professor were to be given a Guernsey. If they have ranged freely over a large number of topics they would have little trouble producing 100 paragraphs to order. 

Too many of the intermediate appellate courts appear at present to be burdened by "free riders" who are often content to concur, but not undertake the Sisyphean task of reducing eight blue books and disconnected submissions to some semblance of order.

A very strong operator as part of the "tight five", to use a Rugby metaphor, like (Smokin') Joe Campbell JA will be sorely missed when he disappears after his return from a break in Espagne.

So, too, will older players like Handley AJA. It was not for nothing that his appointment seemed to be indefinitely prorogued under some sort of dispensing regime.

Where else could the State obtain a judicial officer capable of producing the immediate first judgment (particularly in areas of difficulty and expertise like proprietary estoppel, in which the leading cases are all over the shop, for $600 per diem and some sandwiches?

All this means the Attorney needs to meet a number of criteria in her appointments.

First, someone not too old - plenty of creative juices, energy, and also (given the correct political hue) a bulwark against what may threaten to be years of Abbottism.

Not for nothing are the life time appointments to the US Supreme Court regarded by political scientists as the most important a President can make.

Secondly, someone collegial - it is always useful at the case caucus to have a friendly spirit ready to take-up the burdens of a first draft judgment.

You can see that at work with any new appointment to the High - he or she is always broken in gently by being given a fairly straightforward judgment to prepare, say something involving an armed robber from Launceston, in which all the other members of the court unanimously join. 

A number of doctrinal questions are in play before the court.

What is the scope of the nationhood power after Pape? Is, or should, restitution be a separate doctrine? Must matters of strict equity continue to play a large part in the court's development of doctrine?

Fundamental issues such as these are likely to loom large in the near future.

The successive departures of Gummow and Heydon mean that two of the more conservative and doctrinaire judges are leaving at just the time they are most needed.

The last thing we need is a substantial reworking of established doctrine, which is hard enough to determine in the first place.

Apres nous le deluge?

I suppose the Attorney could retort: Ruat caelum, fiat iustitia. 

Let the heavens fall so long as justice is done.

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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