We are approaching a period in which four of the seven judges on the High Court will have to retire. Two reach the mandatory retirement age within the next twelve months, another in October 2022, then the Chief Justice herself in January 1724. Not since the latter half of the 1990’s has there been a period of such turnover. At that time it had been anticipated that John Doyle, the Chief Justice of the Supreme Court of South Australia, would be appointed. Doyle was widely considered to be one of the best legal minds the country has ever produced and was seen as a future Chief Justice, not simply a puisne, of the Court, but the five vacancies in those years went to three from New South Wales, one from Victoria and one from Queensland.
The High Court has always lacked diversity from a federalism point of view. Of the 53 judges from its inception in 1903 through to today, six have come from Western Australia, eight from Queensland, and of the remainder the scoreboard currently reads Victoria 13, New South Wales 26.
But how will the progressives’ version of diversity affect the Court over the next four years? Will the appointment process withstand the creep of identity politics? According to the Oxford Companion to the High Court of Australia the appointment process has been dogged by this issue for years already. “Two enduring controversies concern the proper place of ‘merit’ in deciding on candidates for appointment, and the need for the appointment process to produce a more diverse Court that reflects or represents the society from which it is drawn.” The Court has indeed ticked two boxes on the diversity checklist in recent times. Five women have been appointed, including the present Chief Justice Susan Keifel, and Michael Kirby, who served from 1996 to 2009, had a male spouse. But nonetheless, when primary schools around the country take their Grade Six class on a trip to Canberra with the obligatory visit to the High Court, the teacher still no doubt issues a trigger warning before ushering them in to see that the seven faces on the bench are all white anglo.
The Australian legal profession is hypocritical on this front. On the one hand it adheres to ancient British traditions of common law and procedure and revels in the pomp of wigs, gowns and Latin maxims, whilst on the other it has publicly aligned itself with the progressive movement and its crusade for the dismantling of western civilisation. This hypocrisy was seen in 2017 when the Law Council of Australia supported the yes campaign in the marriage plebiscite, as well as in July 2019 when two retired Chief Justices, Gleeson and French, supported the creation of an indigenous chamber in the federal Parliament. It is seen also in this affirmative action with regard to the personnel of the judiciary. Former Justice, Michael McHugh, has said that “when a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution.” It could equally be said that, if it is perceived that the appointment process is making concessions to identity politics, the Court will lose public confidence. But, led by people including former Chief Justice Gibbs, the argument persists that the make-up of the Court needs to be, not representative of Australian society at large, but reflective of it. The appointment process needs to ensure, the argument goes, that in balancing the merits of competing candidates, priority is to be given to this requirement of reflecting the broader population.
Of the four upcoming appointments, one would need to reflect Australia’s indigenous people. Maybe Noel Pearson’s reward is nigh. He did study at the University of Sydney, after all, although competition might come from people such as Tony McAvoy SC, or Bruce Pascoe, provided some legal qualifications can be found in his record. Then, if land ownership is a criterion, we should have a judge of Chinese origin, which would be welcomed by the Asian Australian Lawyers Association whose objectives include “to promote and facilitate Asian cultural diversity in the senior ranks of the legal profession”. Similarly, the Australian Muslim Legal Network, which advocates “a Muslim perspective on law reform and civil liberties issues.” To reflect the trans community a stand-out would be Catherine McGregor, who speaks with more assurance on constitutional matters than most law professors even though she is still currently completing her Juris Doctor at ANU. Then, if the judiciary is to reflect new Australian citizens, we should have a kiwi judge, or a Sudanese judge, or a Lebanese judge, or all of the above, for if we are genuine in proceeding along a path of creating a judiciary that is reflective of society we cannot stop until every identity group in the country considers itself mirrored in at least one judge. Given that there are seven judges on the High Court we would need to decide which seven identity groups are the most deserving of reflection. Alternatively, successive appointments could be tied to a rota of identity groups. Or we could expand the number of judges in order to accommodate them all. One identity group that would need to be excluded is the elderly. This is due to a constitutional amendment in 1977 declaring that judges must retire at 70, the very age when people in a profession such as law are coming into their full powers. But we would otherwise have a potpourri of identities for our children to behold on their school trips to Canberra, with all of these judges administering the law within the time-honoured British traditions that we inherited, although, if this diversity argument is taken to its logical conclusion, those traditions, too, will have to be reconsidered.
Let the High Court games begin. Whichever identity group they belong to, may the best legal minds get the four jobs, but if they are not there already, history suggests they would do well to relocate quickly to New South Wales or, next best bet, Victoria.