Common(wealth) Knowledge #19: A new era for the High Court

Australia will become the first common law country with a majority female bench.

Australia is set to make history with the appointment of Federal Court of Australia judge Jayne Jagot to the High Court of Australia on 17 October 2022. Jagot J will be the 56th High Court judge, replacing Patrick Keane. In this edition of Common(wealth) Knowledge, we will take a look at the achievements and legacy of Keane J, and then make some predictions about the future of the majority-female High Court.

Keane J will end his time on the High Court, to which he was appointed on 1 March 2013, as the third-most senior judge on the court, outranked only by Kiefel CJ, both in terms of length of service and her status as Chief Justice, and Gageler J. Prior to serving on the High Court, he was Solicitor-General for Queensland from 1992-2005, advising the government on legal matters and representing it in court. After this, he spent time as a Justice on the Queensland Court of Appeals, the appellate division of the state’s Supreme Court, from which he was elevated to be Chief Justice of the Federal Court in 2010.

Keane J quickly gained a reputation for writing joint judgments with Bell and Kiefel JJ, a trend that continued when Kiefel became Chief Justice. This strong partnership came to characterise the High Court bench under Kiefel CJ, who was critical of judges who dissented against the majority of the court. Keane J, who replaced Dyson J, a judge known for dissenting, played an integral role in this. Of the trio, Kiefel CJ and Keane J tended to agree more often.

Some of Keane J’s more recent cases on constitutional and administrative law have formed the subject of Common(wealth) Knowledge articles. In Love v Commonwealth (2020), which was the focus of Common(wealth) Knowledge #6, Kiefel CJ and Keane J dissented against the majority, which included Bell J. Here, Keane J argued against exempting Aboriginal and Torres Strait Islander Australians from the Commonwealth government’s aliens power, which would have made it impossible to revoke their visas if they committed criminal offences.

In Garlett v Western Australia [2022] Keane J delivered a joint judgment with Kiefel CJ. By this time, Bell J had retired. The two were joined in their ruling by Steward J, and endorsed a decision that limited the operation of Chapter III of the Australian Constitution on state Supreme Courts. This was addressed in Common(wealth) Knowledge #14.

On 12 October 2022, heard his last case as part of the Full Court, where all 7 High Court judges are present. In another case involving Chapter III, the part of the Constitution that deals with the courts, Keane J ruled alongside Kiefel CJ and Gleeson J, Bell J’s replacement. Here, in SDCV v Director-General of Security [2022], the trio said that any court exercising authority under Chapter III was not obliged to follow a “minimum requirement” of procedural fairness to the parties in resolving a dispute; rather, the fairness must match the factual circumstances of the case. This case will be the focus of next week’s Common(wealth) Knowledge #20.

As the last two cases suggest, Keane J is a respected authority on Chapter III of the Constitution, which has also been seen in other cases, like Minister for Home Affairs v Benbrika (2021). These cases also demonstrate his opposition to judicial activism, which promotes broader powers for the courts, more flexibility to apply both personal beliefs and precedent, and taking an activist stance on social issues. Keane J, like Kiefel CJ, favoured judicial restraint and respecting the political domain of politicians and their decisions. This stands in contrast to judges like Kirby and Bell JJ, and explains why Kiefel CJ and Keane J ruled together so often. Yet Keane J’s ability to work judges like Bell J indicates a commendable skill for pragmatism and compromise, where necessary.

With the appointment of Jagot J, the High Court will have its first majority-female bench, which coincides with the High Court’s first female Chief Justice. Apart from Kiefel CJ, the court’s other female judges are Gordon and Gleeson JJ. There will only be three men on the bench, Gageler, Edelman and Steward JJ. The last time this was the case was 1906, when the court consisted of three men, before Isaacs and Higgins JJ were added during that year.

Given the public debate about the Indigenous Voice to Parliament, the appointment of Jagot J, who has considerable experience with Aboriginal and Torres Strait Islander issues, is a good choice. Serving on the Federal Court since 2008, she has been in the running for appointment several times. Prior to joining the Federal Court, she had been part of the New South Wales Land and Environment Court since 2006, due in part to her background in environmental law. These qualifications equipped her to resolve the native title disputes lodged by the Yaegl and Western Bundjalung peoples, the former lodged in 1998 and not fully resolved until 2017. Among Jagot J’s speeches are discussions reconciliation between Aboriginal and Torres Strait Islander peoples and other Australians, and whether native title claimants should be entitled to economic compensation.

In addition to native title and Aboriginal and Torres Strait Islander rights issues, and environmental law, both of which are topical in the modern Australian political climate, Jagot J has also covered commercial law. This includes patent and copyright law, a topic that does not often come before the High Court. However, consumer protection and competition cases are becoming increasingly common, and this is another field of commercial law that she has focused on.

Some have pointed out that the government, by appointing Jagot J, has neglected to appoint an expert in criminal law. Bell J had been the court’s criminal law expert but retired last year. However, the blame for this should not fall entirely on the Albanese government, as Bell J retired when the Morrison government was in office, and they similarly failed here.

As seen in The Guardian.

Jagot is the first of two expected appointments to be made under the Albanese government this term, with Kiefel CJ having to retire by her 70th birthday in January 2024.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Garlett v Western Australia [2022] HCA 30.

Love v Commonwealth (2020) 270 CLR 152, [2020] HCA 3.

Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; [2021] HCA 4.

SDCV v Director-General of Security [2022] HCA 32.

Western Bundjalung People v Attorney-General of New South Wales [2017] FCA 992.

Yaegl People [No 1] v Attorney-General of New South Wales [2015] FCA 647.

Yaegl People [No 2] v Attorney-General of New South Wales [2017] FCA 993.