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Judges
24 July, 2008  
CJ speculation is rife

Talk of splits in the cabinet over the new High Court Chief Justice, compromise candidates and scary alternatives. Still no decision


From The Sydney Morning Herald – Friday, June 25, 2008

imageWalk three steps down the Boulevard of Broken Dreams (aka Phillip Street) and your ear will be bent with ten different speculations about the next Chief Justice of the High Court.

Murray Gleeson steps down from the post on August 29, as the next day he turns 70 and is thereby constitutionally unable to sit as a federal judge.

Needless to say the attorney general Robert McClelland is keeping schtum, and anyway he’s out of the country at the moment attending to trans-Tasman matters in New Zealand.

He won’t be back at his desk till next week and there’ll be no announcement until he returns.

The drum at one point was that cabinet was split on the appointment. The leading women lawyers in the government, Deputy Prime Minister Julia Gillard and Health Minister Nicola Roxon, want a significant female jurist to go to the court, and they have in mind Susan Kenny, a well credentialled Federal Court judge from Melbourne or Marilyn Warren, the chief justice of Victoria.

The theory was that Kenny would be slipped in at the bottom of the pack, so to speak, and Bill Gummow would move from senior puisne judge to chief justice.

Gummow is a Keating government appointment to the court. The unsubstantiated belief is that he particularly endeared himself to the then prime minister as a Federal Court judge by finding against the NRMA in the Dawn Fraser case.

Labor governments have invariably made a practice of elevating the next in line on the bench to the top judicial job. If that were to happen it would give Gummow just over three years as chief justice.

It seems a weird scenario, quite frankly. What if Labor lost the next election – (dash) it would leave the Tory’s with the job of filling the bill.

If the senior female lawyers in cabinet are looking for a new woman appointee, far better to move Warren straight to the top job.

On the other hand, I’m told, the senior blokes, such as the prime minister and the attorney general, would like to see either NSW chief justice James Spigelman or Federal Court judge Robert French succeed Gleeson. A split in the ranks suggests that a decision has yet to be made.

Spigelman has ancient connections with the McClellands. He was secretary to the Department of the Media in 1975, when Robert McClelland’s father Douglas was in the final stages of holding that portfolio.

Spigelman seemed to know before most others that young McClelland would be the Commonwealth attorney general and not Bob Debus or Joe Ludwig, who had been the shadow before the election.

Robert French is a handsome and able contender from Perth and has been talked up for the job by well placed spruikers. In 1969 he stood for the Liberals against Kim Beazley senior in the seat of Freemantle, but that hasn’t been held against him for one minute.

French is in the United States at the moment and he doesn’t appear to have been advised yet that he’s to move to Canberra.

Like all right minded judges he’s actually said on the record that he doesn’t consider himself a “black letter lawyer” – (dash) a pronouncement that should provoke the anti-activist tub thumpers to reach for the smelling salts.

However, there is one curious development. Three days ago the assistant treasurer Chris Bowen announced that Justice French is to be president of the competition tribunal, replacing Justice Alan Goldberg whose term expires on July 29.

Is this some sort of trick to distract us or are they seriously suggesting that an appointment as President of the Competition Tribunal is a satisfactory consolation prize for being overlooked as chief justice?

It’s happened before. In 1998 the then attorney general Daryl Williams wanted to see Justice John Von Doussa appointed to the High Court. Some of the knuckle dragging Liberals and the Nationals ganged up and Ian Callinan was given the job instead. Von Doussa later got the gig as president of the Human Rights and Equal Opportunity Commission.

Three names that are on a growing number of tongues as candidates that could resolve any cabinet division: John Doyle, chief justice of South Australia, Bret Walker SC from the Sydney Bar and Pat Keane an appeal judge from Queensland.

You’d think a bit of warning would have to be given to any prospective appointee, who is currently sitting as a judge. They would be required to stop sitting on cases and to polish off all their unfinished work.

Interestingly, Chief Justice Spigelman yesterday handed down some judgments in the Court of Criminal Appeal and he’s not listed to sit today.

It is from lawyers and other judges that these speculations swirl, so there’s a strong possibility that it’s a lot of noise in the wind.

Still, the High Court in Canberra has scheduled Chief Justice Murray Gleeson’s farewell ceremony for 2.15 on Friday, August 29. A swearing-in ceremony has been set for Monday, September 1, at the still to be confirmed time of 11.30 am.

Someone’s got to be there.