In the end Spiggs got rolled.
Robert French and James Spigelman were the two names that finally were in contention to be Chief Justice of the High Court.
How come French clinched it?
There are more than half a dozen reasons.
- At 61 he’s in excess of a year younger than Spigelman and so would have three parliamentary terms as CJ.
- Cabinet was concerned that the new appointee should be an attractive leader, who could develop a more cohesive court and soften its parched dry jurisprudence. It was thought, rightly or wrongly, that French would be better at that.
- He has a strong background in Commonwealth law – administrative, trade practices and native title. Importantly he has a well developed approach to issues of natural justice.
- Spigelman is a throw-back to old Whitlam-style Labor – someone not really in the consciousness of the new era Ruddites. French is viewed as apolitical.
- The Federal Court itself gave French a lot of support and a big gold star in the consultation round. Neither Spigelman nor Pat Keane from Queensland had anywhere near the same behind-the-scenes boostering.
- There are new and important regional considerations. The usual Sydney-Melbourne forces that have shaped the constitutional framework, and ensured their boys get the important federal gigs, just don’t carry the same weight in the Rudd regime. As my source told me, it was seen as important that the “same city, same university, same club” prerequisites should be quietly “drowned in a bucket of luke warm gravy”.
- At the end of it all Spigelman did not have enough rooters in cabinet.
Judging by today’s coverage among the people who have not grasped the dynamics of what has been going on are The Australian’s legal affairs man Chris Merritt and the frequently cited Prof. George Williams.
Merritt wailed that the government didn’t select “it’s perfect candidate: Jim Spigelman”.
Further, he declared that the Rudd government has “rejected the option of radical change on the High Court by appointing an orthodox black-letter lawyer, Robert French”.
Prof. Williams went a bit inter-planetry with his comments:
“I doubt he is going to be a really progressive, creative judge because he would see quite strict limits on what a High Court judge should do – and that would be different to other people who might have been appointed.”
I wonder who these “other people” could possibly be.
We’ve had to endure entire forests of speculation and torment about this appointment. The confusion was terrible. A month ago The Australian’s lead pundit Michael Pelly told us:
“Spigelman, 62, remains the overwhelming favourite, a ranking the one-time senior adviser to former prime minister Gough Whitlam has held ever since Labor returned to power last year.
“Departmental insiders say Spigelman is over the line, but 61-year-old French enjoys universal respect after 22 years on the Federal Court. Keane, 55, is considered the best of the under-60 brigade.”
Interestingly, the decision to appoint French was not made yesterday (July 30) but on Monday, July 28.
According to our agents the selection had already been made before it got to cabinet yesterday.
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French is a liberal humanist but by no means a Laborite.
His name was floated in Liberal circles at the time Tubby Callinan was due to retire from the court. It was the appointment that Susan Kiefel got, which meant that it was an excellent one for French to miss.
At the time the full Federal Court struck down the entirely misconceived “annoy” regulations of the World Youth Day Act federal cabinet had not yet formulated the short list for the CJ’s job.
French’s fingerprints were all over that judgment and unwittingly it was the single biggest factor that strengthened his contention.
French has spent nearly 22 years as a judge. He was appointed by the Hawke government to the Federal Court when he was 39-years old.
He had not had time to take silk.
Bill Gummow was appointed to the Federal Court at the same time. He’s got about three years left as the senior puisne High Court justice.
On July 22, the Minister for Competition Policy and Consumer Affairs, Chris Bowen, announced that French would succeed Alan Goldberg as President of the Competition Tribunal on Monday (July 28).
This suggests that as of a week ago the government had not narrowed who would be on the short list for CJ.
Actually, Robert French’s chances of selection by the Ruddites could have been blown after The Australian reported that in 1999 he had given a speech to the “Institute of Psychics”.
It took a while for the penny to drop that his speech was actually to the Australian Institute of Physics. Credibility was instantly restored.
French’s wife Valerie, who the new CJ credits as having “a keen ability to detect cant and pomposity”, is a judge of the WA District Court and head of the state’s parole board.
He has a lawyer son in Melbourne.
As was pointed out in The Sydney Morning Herald today French is not quite the “black letter lawyer” that Attorney General Robert McClelland, Merritt and Williams would have us believe.
His paper to a forum on judicial activism in February showed a much more textured view about the role of judges.
French posed the question, “Judicial activism – mythical monster?”
“The meaning of legislative words are not like rocks lying around on the ground waiting to be picked up. They are the products of interpretation. That interpretation is legitimate when it is principled and invokes criteria which … are broadly understood.”
He added that the separation between the judiciary, the executive and the legislature “is not defined by bright lines”.
He illustrated his presentation with footage of intonements from Judge Dredd. With great humour he cleaned the floor with his opponent in the discussion, the grim Janet Albrechtsen, whose activist fog horn got drenched in the mist.
It’s to be fervently hoped that French can crack the Gummow/Hayne/Heydon grip on High Court thinking.
However, there’s not a lot for him to work with as the two Susans seem pretty dehydrated.
There’s always Kirbs, but he too has to be replaced in March.
One disturbing aspect is that Justice French is a runner, a marathon man: Perth, Rottnest and Rome. This sort of behaviour is not to be encouraged.
Of course, if this was the US of A, the senate would have thoroughly probed the judge’s views on gays, guns and abortion before handing him the black gown.
Happily, we’ve managed to avoid that process.
It’s interesting to speculate who the Liberals might have appointed as Chief Justice. De Jersey? Gummow? George Brandis?