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Christian Porter punts on junior judges for High Court

Chris Merritt                 7 January 2021

Published in the Australian Newspaper

Until now, Christian Porter’s political career has enjoyed a steady upward trajectory. With time on his side, the 50-year-old Attorney-General could eventually find himself in The Lodge. But he gambled everything with this week’s High Court appointments.

He has elevated two judges who are notable for their relative youth and limited experience on the Federal Court. If this big bet comes off, these appointments will burnish Porter’s reputation.

He will forever be known to the Coalition’s core supporters as the man who steadied the High Court, reinforced Chief Justice Susan Kiefel and ended an incipient outbreak of judicial activism.

With luck — and an appropriate case — Porter’s recruits could also entrench his standing in the broader community by marginalising the judicial adventurers who changed the Constitution in February by introducing the repugnant concept of racial privilege.

But if the vetting of the new judges turns out to be imperfect, there will be nowhere for Porter to hide. The new recruits, Jacqueline Gleeson, 54, and Simon Steward, 51, were on the Federal Court for just six years and two years respectively. They will now be on the High Court until 2036 and 2039.

Under Australia’s system, the executive branch of government has exclusive responsibility for High Court appointments. There are no US-style confirmation hearings and despite support in some quarters, Porter and Scott Morrison have declined to follow the example of Donald Trump who made public a list of legal conservatives being considered for the US federal judiciary.

The Americans know quite a lot about their latest Supreme Court judge, Amy Coney Barrett, who was on the list. But Australians know only the barest details about two of the people who will now be responsible for upholding the rule of law. They also know nothing of substance about the selection process.

High Court appointments are officially made by cabinet after a selection process overseen by the Attorney-General. In practical terms, Porter will wear the praise or the odium depending on whether the new judges adhere to legal orthodoxy, or allow power to go to their heads.

These appointments maintain the court’s existing gender balance — four men and three women — but there is no way of knowing how this was achieved. Was it a byproduct of the search for the best candidates, or was gender a factor in Gleeson’s appointment?

Last month, Porter declined to provide a direct answer when asked on September 29 if gender and ethnic background would be factors in the selection process. He also declined to identify those who had been consulted about the appointments and which groups had provided lists of preferred candidates.

Those who claim to know that Gleeson and Steward will shift the court to the “right” are, to be put it mildly, confused. Legal conservatives who adhere to the original meaning of the Constitution and the plain meaning of the text of statutes are not necessarily the same as political conservatives who vote for the Coalition.

Legal conservatives might even vote Green.

In a rational world, federal Labor would be among the most prominent proponents of legal conservatism. This concept prevents the meaning of laws enacted by parliament from being changed by activist judges — regardless of whether those laws are passed by Labor governments or the Coalition.

Legal activism, on the other hand, has nothing to do with left-wing politics. It is an anti-democratic ideology that undermines the rule of law, breaches the separation of powers and threatens the supremacy of parliament.

Gleeson and Steward might have seemed competent, orthodox judges when they were on the Federal Court. But they are now entering a different world. They have been liberated from the ever-present discipline of potentially being overturned on appeal. Their workload is also more daunting. They are joining the guardians of the Constitution.

They will replace two of the four judges who decided in February that parliament’s power to deport criminal aliens does not extend to foreigners who have Aboriginal ancestry.

The pending departure of Geoffrey Nettle and Virginia Bell means the majority in the aliens case has been cut in half, leaving just Michelle Gordon and James Edelman.

This means Porter might well have changed the balance of power on the court. If the new recruits reject the idea of race-based exceptions to the federal government’s constitutional powers, the court would have a new five-judge majority on this symbolic issue.

Only after they take their seats and start work will it be possible to assess the impact of Gleeson and Steward. But there are clear criteria by which to judge their performance — and some of those criteria have been outlined by Gleeson’s father, former High Court Chief Justice Murray Gleeson.

In 2003, the former Chief Justice was one of the contributors to a series of essays on the rule of law, along with the late US Supreme Court judge Ruth Bader Ginsberg.

He endorsed Ginsberg’s call for judicial “restraint, economy, prudence, respect for other agencies of decision … reasoned judgment, and, above all, fidelity to the law”.

The former Chief Justice wrote that restraint and discipline were sources of strength, not weakness, for the judicial branch of government.

“Judicial prestige and authority are at their greatest when the judiciary is seen by the community, and other branches of government, to conform to the discipline of the law which it administers … Public confidence demands that the rule of law be respected, above all, by the judiciary,” he wrote.