Good old new boy
Thursday, August 23, 2012
Justinian in High Court, Judges, Nicola Roxon, Stephen Gageler

Contrary to popular theory, Solicitor General Stephen Gageler did not advise the government that all would be well with squeezing the "Malaysian solution" into the Migration Act ... Far from it ... The Attorney General knows that and so too the PM 

Gageler: facing years of Abbottism

Attorney General Nicola Roxon understands what is required for a High Court appointment. 

She worked there as Mary Gaudron's associate between 1992 and 1994. She knows that the court would want appointees young enough to have plenty of reserve juice and to have a collegial nature - quite apart from having a serious amount of legal smarts.  

Gageler, at 54, has all of this in spades. Importantly, he'll have 16 years ahead of him, which should be enough time to see out the excesses of Abbottism. 

He got there without behind-the-scenes work of a PR team or a job application speech to a bunch of political claqueurs. 

Gageler himself said in 2010: 

"The notion that appointment can only be validly based on 'merit' is naive. 

It is the product of the same school of thought that gave us uniquely 'right' legal answers." 

In the end we didn't get an exotic appointee, someone from the wild west or someone with "diversity". 

Incidentally, that Quadrant speech from the one who departs next March has kept Tony Mason, Frank Brennan and Bill Deane away from High Court functions - in disgust. 

*   *   *

Prior to Tuesday (August 21) the speculation from High Court watchers was that Gageler might not be in contention because he led the government's case in what turned out to be the politically disastrous outcome to the challenge to the Malaysian solution.  

"Poor Gageler," went the mutterings as the asylum seeker "problem" refused to go away. Then there was the upset over the school chaplains' case.  

Roxxy got this question at her press conference on Tuesday: 

"He [Gageler] provided you with advice on the Malaysia case and six of the seven judges disagreed with the position put by the Commonwealth, which the Commonwealth said was based on that advice. So, I mean, what does that say?

Roxxy: Well, what that says is that when you are on the highest court in the country you are able to make decisions on the law as you see fit and the court indeed did that." 

Again, in the Financial Review on Wednesday (Aug 22): 

"Any lingering doubt that Mr Gageler had fallen from the government's favour was dispelled yesterday when federal Attorney General Nicola Roxon named him the 49th justice of the court since federation." 

Prime Minister Julia Gillard said after the decision of the court in the Malaysia solution case: 

"We acted on legal advice, on legal advice that our case was sound." 

The implication being that it was all Stephen Gageler's fault. 

That is entirely wide of the mark. 

Of course, Gagler ran the government's case in the High Court, but he never advised on the minister's declaration under s.198A of the Migration Act

The advice that the declaration was "sound" came from the Attorney General's department, not the Solicitor General. 

Here's a summary of the High Court's thinking: Plaintiff M70/2011 v Minister for Immigration and Citizenship

No one, for obvious reasons, wants to put their fingerprints on the correct version of events, and Gageler's loyalty and sense of what is appropriate puts it out of bounds for him. 

Regardless of the public perception of fallibility, once a new appointee reaches the Olympian heights they instantly transmogrify into an infallible Grand Wizard. 

*   *   *

Former Sydney Morning Journalist Rick Feneley did the most recent revealing interview with Gageler in January 2009.  

Apart from the swathes of effusion from colleagues and friends, Gageler himself said some worthwhile things, particularly about that catch-cry from the drones of the right, "judicial activism". 

"It's terminology that I intensely dislike."

He described the Mason court as a "romantic period" - a time of "great creativity and development of the law". 

"It's nonsense to say a judge doesn't make the law. Absolute nonsense. And I find it embarrassing to be having a national debate on that subject in Australia in 2008 given that I thought this had been settled 70 or 80 years ago." 

Michael Kirby once said that the idea that judges only apply the law was a "noble lie". 

Gageler says he's with Kirbs on that one, although he's not saying anything new. 

However, the new appointee describes himself as a "cautious incrementalist". 

Interestingly, he is the fifth ANU graduate in succession to be appointed to a serious sort of court - Alan Robertson, John Griffiths, Robert Beech-Jones, Geoff Lindsay and now SG SG. 

*   *   *

The mumblers' bar is anxious about two of its pin-uo-boys - Gummow and Heydon - leaving in short order. 

Gageler is a constitutional and administrative lawyer, so he might have to borrow Virginia Bell's copy of Promissory Estopple in a Nutshell.  

Nonetheless, his appointment is so acceptable that even the Libs' (Soapy) George Brandis was on board. 

There was a moment in  2010 when the solicitor general shot down Soapy in a ball of flames (that's if soapy objects can ever actually catch fire). 

The issue was whether the Constitution prevents the extension of pairing arrangements to the Speaker of the House of Representatives. 

In the early days of the hung parliament Rob Oakshott put out the idea that he might be Speaker, if he could be paired. 

Brandis' view was that the Constitution would prevent this arrangement.  

Gageler's advice was that the House of Representatives has the power to decide on its own arrangements about the Speaker. 

He pointed out that two provisions are constitutionally ordained - that the Speaker not have a deliberative vote and not be deprived of a casting vote and that the arrangement with a pair be voluntary. 

*   *   *

Two weeks ago Gageler did not know he was even a candidate for Bill Gummow's High Court vacancy. 

His name was being canvassed among the cognoscenti, but at that stage he had not been approached about the job. 

Or at least he was giving a very good impression of someone who had not been approached. 

A while ago I sat next to Stephen Gageler at a lunch and he asked me about Justinian. "Why did you decide to make it satirical?"  

"But, Stephen, it's not satirical. In a sense the law is beyond satire because you can't satirise something that is not a laughing matter." 

There was no showiness or bombast at all. 

His professional life has been the bar and the law, the law and the bar. There's family, of course, and a bit of church and taekwando. 

"My perception is that at any time there would be 50 people in Australia quite capable of performing the role of a High Court justice," he told a gathering at Sydney University in 2008. 

To be the most brilliant lawyer of your generation is not enough for the the task. Lashings of gravitas and a skeleton-free cupboard are required to bolster the omnipotence of the institution.

Once everything is rightfully in place, the court wraps its own in a heavenly glow. 

For lawyers swimming upstream the law is like a cult. Bound in closeness, ritual and mystery.

Often, there is little need to get much sustenance from the outside world. In most cases, there's no time. 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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