Your scribe was basking many thousands of kilometres from our golden shores when news filtered through of a bar brawl that started to develop legs. Soon it was out in the street attracting barrackers.
Inevitably, Planet Janet Albrechtsen at The Whorestralian was flailing away, providing the sound effects as she pummelled her targets, first Robert Beech-Jones of the High Court, and then Stephen Gageler, its CJ.
The casus belli was Beech-Jones’ attack on the Samuel Griffith Society delivered in Townsville earlier in May. HH had taken a ruler to the claims and possibilities bruited for the Society, and listed them as un-Australian.
In particular Beech-Jones was perturbed by the urging from some speakers at Society events (eg then Senator Amanda Stokes), backed by clamouring commentators (surprise, the Planet) that the Samuelites should evolve from merely being a talk shop for right wing legal and cultural ideas, to schooling likely young talent with a view to getting placements on the benches, there to secure the sacred tokens – constitutional originalism and adherence to the blackest of black letter law, the older the precedent and the less relevant to modern social conditions, the better.
Beech-Jones also expressed dismay at the schoolyard adjectives used by SGS speakers when attacking Mabo No 2. He is quite correct, of course, in hoping for a better standard of debate from the highly credentialed speakers touted by the SGS, but the Townsville speech didn’t receive much attention on that front.
Papers from various of its conferences have promoted the idea that the SGS mirror the Federalist Society in the US, which works to see judicial positions filled by those of a suitably right-wing view.
Beech-Jones called this out for what it was: court stacking, and pointed out that such behaviour was not part of the Australian legal tradition and attempts to introduce it should be seen off quick smart.
The conflict reduces to how far a society with stated aims to be a debating body can be saddled with the more adventurous claims of speakers at its functions, and its media supporters.
It’s fair to say that while the SGS may not have raised an official flag signalling intent to get the right sort placed in judgment seats, the tenor of three decades’ attack on Mabo leaves its motives and ambitions open to suspicion on that front.
The Judge, having launched a pre-emptive strike, hellfire rained down, with Albrechtsen dismissing him as “low rent”, and seeking publicity with a view to becoming the next CJ (which would be a dramatic break with precedent).
In the course of her first jeremiad, she demanded that Chief Justice Gageler deliver to her his views on RBJ’s heretical attack on free speech.
When that did not eventuate, she launched a second strike, this one aimed at Gageler. No right to silence with this scribbler.
By now, other media were attracted by the noise. The Nine fishwraps opted for a split in the Court, as Simon Steward was a known supporter of the Society, and had thrice addressed it.
But Steward has never suggested the training of cadres to assume judicial posts in a distant future. This was a piece of media whimsy that went nowhere.
The Canberra City News was outraged at Albrechtsen’s behaviour, which was dismissed as an ad hominem rant, lacking the precise footnoting that had marked the Judge’s speech.
The City News directly addressed the court stacking issue: of course, governments hope for judges who see things in a light comfortable for the politicians in power.
In the midst of the brawling, it might be useful to remember that over a hundred years ago Australia had an instance of direct executive screening of a contender for the High Court.
Billy Hughes, as Attorney General, had a number of places to fill on the High in 1913. He was interested in appointing A.B. Piddington of the Sydney Bar, but Piddington was travelling.
Hughes had an intermediary send a telegram to Piddington’s steamer in Port Said, asking for his views on State v Commonwealth powers. Nothing was said re a High Court post.
Piddington signalled back that he favoured the Commonwealth. Shortly, he was informed that he was nominated to the High. But Piddington felt remorse at having been directly assessed prior to appointment and did not attend on the day of his commissioning. He never sat, although later presided in an arbitration and employment tribunal.
It’s all too easy to drift into lax standards as regards judicial appointments. Australian governments have untrammelled power in this regard.
The unhappy memory of Chief Justice Carmody in Queensland lingers. The South Australian government has just appointed a retired politician as a Supreme Court Associate Justice, with no known courtroom experience.
In such a context, Beech-Jones’ knuckle-rapping against court stacking for any ideological reason is necessary medicine.
The SGS is on notice: debate to your heart’s content the importance of reading the Constitution as though you’re as hirsute as the Founding Fathers (sorry, no Mothers) on January 1, 1901. Publish turgidly on the outrage of reading the Constitution as a living document.
But you will be called out if you discuss the organisation of cadres for a Tory judicial future.
Meanwhile, Beech-Jones has merely saddled himself with memes: he’s married to THAT playwright, so he’s now the Notorious RBJ.