Common(wealth) Knowledge #66: Another year, another High Court appointment

Justice Beech-Jones will be the 4th judge appointed in as many years.

With the current Chief Justice of the High Court of Australia, Susan Kiefel, announcing that she will retire on 5 November 2023, Justice Stephen Gageler will be promoted to become the new Chief Justice, and New South Wales judge Robert Beech-Jones will take Kiefel's seat on the bench.

Under Section 72 of the Australian Constitution, High Court judges are required to retire at age 70. Although Kiefel CJ turns 70 on 17 December 2024, she has decided to seek early retirement, requiring the Governor-General to appoint the 4th High Court judge since 2020.

Section 72 was amended in 1977, in one of Australia’s few constitutional referendums, partly in response to so many judges dying while still on the court. This has applied to every judge appointed after 1977.

Although Section 72(i), which existed before the referendum, states that the ‘Governor-General in Council’ appoints all judges, in practice the Governor-General’s role is just a formality. The Attorney-General selects a candidate, and then the Prime Minister and Cabinet, the ‘Council’ mentioned in Section 72(i) nominate that candidate for appointment.

Stephen Gageler was Solicitor-General for Australia between 2008 and 2012, serving the Rudd and Gillard Labor governments. In this capacity, he offered legal advice to the Commonwealth government and represented it in court.

Gageler was appointed to the High Court in 2012, on advice from Prime Minister Julia Gillard’s government, and was succeeded as Solicitor-General by Justin Gleeson, of no relation to former Chief Justice Gleeson or the current Justice Gleeson, who are father and daughter.

The Solicitor-General is expected to be an expert on public law, which encompasses constitutional, administrative, taxation, and criminal law.

It is no surprise, then, that Gageler J is considered by many to be the pre-eminent sitting judge on criminal and constitutional law. In a recent discussion I had with GovCheck’s international correspondent, Elijah Granet, we agreed that although Justice Edelman often goes into more detail in his constitutional law judgments, explaining them in layman’s terms, Gageler J remains the more experienced judge in this field

Some of Gageler J’s judgments have featured prominently in this series, including in the criminal law case Minister for Immigration v Thornton [2023], covered in Common(wealth) Knowledge #56, and two of his judgments on the implied freedom of political communication were quoted in Common(wealth) Knowledge #57.

Last year, when Justice Keane retired, I speculated in Common(wealth) Knowledge #19 that Kiefel CJ’s retirement could spell the end of an era for the High Court. Kiefel CJ and Keane J almost always issued joint judgments, alongside Justice Bell, who retired in 2021 and was replaced by Gleeson J.

Joint judgments are useful, because it is easier to determine the reasoning behind the court’s ruling. If all 7 judges wrote their own judgments, this becomes quite difficult.

However, although Gageler J, like Edelman J, often issues his own judgments so that he can explain his own reasoning, he isn’t opposed to working with other judges. The two judges he most often agrees with are Kiefel CJ, whom he has worked with the longest, and Gleeson J.

In 2022, he was present for 31 cases with Kiefel CJ, agreeing with her in 27 of those cases, with an 87.1% agreement rate. Similarly, he heard 24 cases with Gleeson J, in her first full year on the court, and agreed with her final decision in 20 of those, or 83.33% of cases. In 14 cases, or 58.83% of the time, Gageler and Gleeson JJ issued the same reasonings.

The appointment of Robert Beech-Jones is also good news for the High Court.

Beech-Jones has over a decade of experience on the New South Wales Supreme Court, where he has served since 2012, before being promoted to Chief Justice at Common Law in 2021, which includes a seat on the Court of Appeal.

The Common Law Division of the Supreme Court handles some criminal matters and administrative law, which complements Gageler J, along with contract law and negligence.

Among his more famous judgments was his decision to order a trial by judge alone in Chris Dawson’s murder trial, in R v Dawson [2022], where he was critical of the influence that the Teacher’s Pet Podcast may have on any potential jurors.

Beech-Jones CJ at CL also heard Kassam v Hazzard [2021], a challenge against the New South Wales Covid-19 measures. Among the arguments before him was that it went against Section 51(xxiiiA) of the Australian Constitution, which prevents “the provision of … medical and dental services … [as] any form of civil conscription.”

‘Civil description’ is a phrase discussed at length in Common(wealth) Knowledge #35 and Common(wealth) Knowledge #52, but, in brief, it refers to doctors having to carry out certain tasks against their will.

In a manner that Edelman J would have been proud of, Beech-Jones CJ at CL went to great lengths to explain this clause of the Australian Constitution, before pointing out that even if the Covid-19 measures were a form of civil conscription, that clause was only a restriction on the legislative power over the Australian Parliament, not the New South Wales Parliament.

The appointment of Beech-Jones CJ at CL also alleviates some concerns raised after Keane J’s retirement, namely that, after Justice Jagot’s appointment, there were few members of the High Court who had practised criminal law as a barrister, and that only Kiefel CJ and Edelman J had any experience on a state Supreme Court, with the rest, except Gageler J, being limited to the Federal Court.

Gageler J is the next judge up for retirement, turning 70 on 5 July 2028, meaning there will be 5 years of stability on the bench, after 4 years of change.

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