The funeral in 1948 of Sir Isaac Isaacs, Chief Justice of the High Court of Australia and Governor-General, was attended by High Court judges Hayden Starke and George Rich. Rich had been appointed in 1913 at the age of 40 and here he was still on the High Court Bench at 85.
As Starke and Rich walked passed the open grave, Starke leaned over to Rich and said to him, “”George, are you sure it’s worth your while going home.”
As it happened, Rich continued on the bench till he was 87 and died a couple of years shy of his 100th birthday.
It was not until after the 1977 referendum that federal judges were forced to retire at 70. What a silly change that was. Men in their late 60s tend to waffle on. When they get into their 70s and later, they realise that time is running short, so they make every word count. Since 1977, the average length of High Court judgments has increased exponentially, to the great disservice of law students and legal journalists throughout the country.
Rich was on the High Court bench for 37 years, but it was not the record. That was held by Justice Edward McTiernan who was on the Bench for 46 years. He was appointed by the Scullin Labor Government in 1930. So when Gough Whitlam came to power in 1972 he was 80 years old and had been on the Bench for 42 years. Surely, he would retire and allow the Whitlam Government a High Court appointment to help advance Labor’s constitutional causes. But no. Indeed, sometime in 1974, McTiernan appeared in court with a new wig. As he took his place on the bench there was an audible groan among Labor supporters in court, for it signalled that McTiernan had no intention of retiring.
The High Court will be 100 years old next year. Next week the Chief Justice, Murray Gleeson, will launch the Oxford Companion to the High Court of Australia at the High Court in Canberra. The book, which benefited by funding from the Centenary of Federation and the Australian Research Council and help from the ANU’s Law School, is edited by Tony Blackshield, professor emeritus at Macquarie University and adjunct professor at ANU and the University of NSW, Michael Coper, Dean of Law at ANU, and George Williams, professor of law at the University of NSW.
It is a Titan of a work – 650,000 words by 225 authors but utterly different in style from most High Court judgments. The 435 entries are each stories or tightly written summaries of the court’s treatment of elements of law – copyright, free trade, excises and so on. (Incidentally, not all the material in this article is from the book.)
The judges are human. They have their weaknesses and strengths and personal animosities and friendships. These are magnified by several things. The judges are appointed and thrown together, rather than a group that comes together voluntarily because they like each other or out of a common interest. Each attained leadership or recognition at the Bar or in politics so would have a certain amount of ego. And each was appointed by one or other side of politics so their outlook would be different – not just on political questions. Even in a trade marks case, the Labor appointees could see the unacceptable passing off between the pictures in the trademark “”Centurion” and the trademark “”Crusader” that would confuse the average garment buyer. The conservative appointees thought the average buyer would obviously know that one was classical and the other Medieval (as they queued at the Woolworths undies counter).
Owen Dixon, perhaps Australia’s greatest judge, detested the overtly political appointments, from either side. His diaries accused Robert Menzies’ appointment as Chief Justice – the Liberal Attorney-General John Latham – of prejudging cases on political grounds. He did not trust the Labor appointment H. V. Evatt, though he admired his legal skill – at least sometimes.
When Latham was appointed in 1935, Dixon wrote in his dairy that every judge in the court “”seems to dislike everybody else”.
Later there were serious disagreements between Chief Justice Garfield Barwick and other judges over the court’s move to Canberra.
When I covered the court as a journalist in the 1980s, there was obvious animosity and resentment between judges appointment by conservative governments and the Labor appointee, Lionel Murphy, though Chief Justice Harry Gibbs did the gentlemanly thing in hastily bringing forward a sitting of the court on learning that Murphy was about to die of cancer so that judgments Murphy has written would not die with him – even though at least one of Murphy’s judgments put Gibbs in the minority.
Later, though, personal relations seem to have improved, perhaps because Gibbs, and Chief Justices Anthony Mason and Gerard Brennan were such innately courteous people. In the book, Mason says that in his time there was much more co-operation and less friction than was evident from dairies and other writings about earlier times.
But who knows what might come out in later years.
The High Court plays a huge role in Australian society – much more than is perhaps recognised.
In its national context, it is one of the most powerful courts in the English-speaking world. It is more powerful than any English and New Zealand court, because anything those courts do can be undone fairly easily by Parliament. But when the Australian High Court rules on a constitutional matter, it cannot be overruled by Parliament. It can only be overruled by referendum to change the Constitution — not such an easy task.
On constitutional questions it is the same for the United States Supreme Court. But the Australian High Court has more power in Australia than the Supreme Court has in the United States because Australia has a doctrine of a single Australian common law. The United States has a system of a separate common law for each state. Say, the Australian High Court hears an appeal from South Australia about liability of land-holders and takes some new direction or interpretation. That new direction applies Australia-wide, irrespective of contrary judgments in other states. Not so in the US.
Indeed, one the of main reasons the High Court will give leave to appeal is because two state Supreme Courts have ruled in different ways on a question. The court seeks to unify the common law in Australia.
The court, in a way, is all-powerful in Australia. It can order Governments to do things or prohibit them from doing things. In 1962, for example, the Bolte Government to hang Robert Peter Tait for murder. Several appeals in the Victorian Supreme Court had been lost. His grave at Pentridge jail had been dug. Less than 24 hours before execution time lawyers petitioned the High Court. The Government refused to stay the execution so argument could be heard, instructing the solicitor-general not to give any undertakings. The High Court issued restraining orders on the Chief Secretary and the sheriff. It was the first injunction against a state government.
The Government was forced to commute the sentence. Tait died in jail.
But the court has no general power, for example, to order the end of all executions. It has no power to make general declaratory statements about the law, either. It can only rule on cases coming before it.
Nor can it suspend the operation of its judgments in constitutional cases. Once the judgement is published that is the law. In the states excise case, it declared that a fistful of state taxing and licensing schemes on booze, smokes and petrol were illegal excises because the Constitution gave the Commonwealth exclusive power over excises. All states and the Commonwealth asked the court to postpone the operation of the judgment for convenience sake while new arrangements could be enacted to allow the Commonwealth to collect the taxes for the states. The court said no. The court was not above the law. The taxes were invalid, unlawful and that was that.
Unfortunately, Governments have to be restrained more often these days – they are keener on abusing their power. The need for a High Court and the rule of law are greater now than ever.
For example, in recent days, the Australian Government through the Parliament has done its best to prevent the Federal Court from hearing migration cases. It would like bureaucrats to decide the fate of asylum seekers with no appeal. Parliament can prevent limit or even abolish the Federal Court’s role, but the High Court is open to everyone. The Constitution empowers it to ensure the rule of law applies, not the rule of a government minister. It may be cumbersome, expensive and time-consuming, but without it there would be no liberty.
The Oxford Companion to the High Court of Australia.