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National Observer Home > No. 62 - Spring 2004 > Legal Notes The High Court and Mr. S.E.K. Hulme Q.C.The appointment of Justices to the High Court has provided many disappointments, with only three pre-eminent Justices appointed in the last century: Sir Owen Dixon, Sir Wilfred Fullagar and Sir Harry Gibbs. In contrast, there have been many appointments of unwanted politicians and activists, such as Mr. Henry Higgins, Sir John Latham, Sir Garfield Barwick and Messrs. Lionel Murphy and Michael Kirby. Between these extremes there have been a number of Justices of moderate legal stature, such as Sir Isaac Isaacs, Sir Hayden Starke, Sir Alan Taylor, Sir Frank Kitto and Sir Ninian Stephen. The appointment of many mediocre Justices has been a consequence of the system of selection. The Attorney-General (usually himself a mediocre lawyer) makes recommendations to the Cabinet, who are ignorant of legal matters and are politically motivated. Senator Peter Durack, for example, was responsible for the appointment under Mr. Malcolm Fraser of Sir Ronald Wilson, Sir Francis Brennan, Sir William Deane and Sir Daryl Dawson. Justices Brennan and Deane were two of the architects of the Mabo decision in 1992, when (although the matter was not properly argued and was indeed not even in issue in the proceedings) by a majority an activist High Court overturned more than a hundred years of authority and created a new class of "land rights". The majority took no account of their sworn duty to apply the law, and the Mabo decision certainly represents the high-water mark of judicial dishonesty in the High Court. The present High Court doubtless represents a step upwards from the Mason and Brennan courts, whose tendency was to appropriate the powers of the Parliament on an activist basis. But the present High Court gives much ground for disappointment. Gleeson C.J., who was a highly-regarded Chief Justice in New South Wales, has proved to be disappointing in the High Court. Justice McHugh calls to mind the proverbial curate's egg: good in parts. Justice O'Callaghan has shown the most integrity in applying the law faithfully, but has not been outstanding. Justice Hayne was a good Supreme Court judge in Victoria1, but his judgments have not been up to expectations in the High Court. Justice Heydon – the most recent appointee – is highly regarded, especially in New South Wales, but it is too early to know whether he will rise above the influences of his peers. It would have been better if two justices – Kirby and Gummow, both significantly choices of Mr. Paul Keating's government – had not been appointed. Justice Kirby is a homosexual activist, and Justice Gummow's decisions have been disappointing, not only in the area of equity (in which he formerly acquired a misplaced reputation) but also elsewhere. The peculiarities of the selection process are one cause of this position. Another cause is a lack of emphasis on scholarship in university education. A consequence has been that such eminent Queen's Counsel as Mr. S.E.K. Hulme have been overlooked. Mr. Hulme became recognised as the leader of the Victorian Bar after Mr. Keith Aickin Q.C. accepted judicial appointment. Mr. Hulme has twice declined appointment to the Supreme Court of Victoria, and has had wide experience in constitutional law and other areas relevant to a High Court practice. He has what may be described as old-fashioned honesty, and writes better English, and is generally more distinguished, than the present members of the High Court, and yet for curious reasons of politics and errors of assessment he has not received a High Court appointment, despite being a person who would add badly-needed lustre to that body. The High Court will not regain its earlier reputation unless more care is taken in appointing Justices. Dr. I.C.F. Spry Q.C. 1. Sir Owen Dixon, perhaps Australia's most eminent Chief Justice, expressed the view that save in exceptional circumstances judges of other courts should not be appointed to the High Court. National Observer No. 62 - Spring 2004 |
