This week, Australians found out about Crennan J’s pending retirement in the usual way: a column by UNSW’s George Williams speculating on her replacement. (See here for Katy Barnett’s commentary.) Although there has been no official announcement, her decision to retire was clearly known to some members of the NSW legal profession, who organised a farewell for her last Friday. Close watchers of the Court will also have noticed two 6-member benches (all the Court’s judges other than Crennan J) in significant hearings last week concerning the Today FM nurse hoax and bankruptcy procedure. That is consistent with the usual practice where High Court judges stop hearing new cases months ahead of retirement. Justice Crennan will spend her remaining time on the bench hearing procedural and special leave applications, and writing opinions in her three outstanding reserved matters.
While Australians are well used to such goings-on every time a High Court judge retires, Canadians’ experience is quite different. This month’s retirement of the Supreme Court of Canada’s most senior judge, Louis LeBel, was announced over six months ago by McLachlin CJ in a press release, attracting timely media commentary. A starker contrast with Australia is that LeBel J has continued to sit in full Court hearings, including last month’s high profile case on euthanasia. That is because of a provision, first enacted in 1923, which allows Canadian Supreme Court judges to continue to participate in reserved judgments up to six months after their retirement. According to the Court itself:
It is in the best interests of the litigants and of the Court to have the complete Bench which heard an appeal make the decision. In particular, this avoids potential gridlock-situations the Court could face with an even number of judges which could result in costly rehearings…. The flexibility the section provides is crucial to the proper administration of justice in the Supreme Court of Canada.
The Constitution’s mandatory retirement age most likely stops Australia from mimicking Canada’s approach, but it would not prevent the government from appointing a High Court judge’s replacement months ahead of her retirement, ensuring that there are always seven judges generally available to hear any case. The main downside would be the cost of the extra judge’s salary for half a year, currently nearly $250,000. (By contrast, Canada’s approach is much cheaper, as the main expense is simply topping up the retired judge’s pension.) The extra pay (as well as other expenses, such as associates and office space) would need to be weighed against the occasional costs of six-judge benches. One especially expensive six-judge High Court decision was 1998’s Gould v Brown, where the Court split evenly due to the absence of Dawson J (who retired at the mid-point of the ten month period where judgment was reserved.) The consequential costs included not only a further two-day hearing (attended by all seven judges and no less than 30 counsel, half of them silks) and the six months the judges spent drafting a new judgment, but also (perhaps) the re-constituted Court’s controversial rejection of Australia’s cross-vesting system.