News: Bell J on ‘The Individual Judge’

UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.

Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says:

The public service that is done by the delivery of joint reasons is the clear and certain statement of the law. Professional advisors can advise their clients with some confidence as to what the law is and judges can decide cases with some confidence about the rule that they are to apply. If the price of certainty and clarity is the loss of the individual judge’s voice, I suspect very few outside the Academy would count that a bad thing. The results of Partovi and his colleagues’ study are introduced with Andrew Lo’s statement that obscuring authorship removes the sense of judicial accountability making it harder for experts and the public alike to understand how important issues were resolved and the reasoning that led to these decisions. Now, with respect,  this strikes me as peculiar obduracy on the part of the Academy. The names of the judges who subscribe to the judgment are recorded above it. Each judge accepts responsibility for all that appears and under his or her name. To trespass if I may on the ghastly language of management, the process is remarkably transparent and accountable.

She adds: ‘needless to say there is no reason to think that there will be a departure from the collegial decision-making that has characterised the French High Court under the stewardardship of Chief Justice Kiefel.’ Nor, might I add, does any improvement in the relations between the High Court and the academy look likely either.

Although spoken weeks ago, some of Bell J’s remarks have a resonance in light of recent events:

For $24, you can buy a Ruth Bader Ginsburg coffee mug. It features a rather grim portrait of her honour under the words ‘I dissent’. How lucky we are that in Australia, outside the law faculties, very few people would be able to name the Chief Justice of the High Court let alone the six puisne justices. It is, I rather hope, inconceivable that the outcome of an Australian election might turn on whether a coalition or a Labor government would be in a position to make the next appointment to the High Court of Australia. It is undeniable that decisions of the High Court have a significant impact on our society. The reason I venture to suggest why the community is uninterested in the judges who make those decisions is because of an unstated acceptance that they are made on legal merit and not on the political or ideological sympathies of the judges.

In the (I think, unlikely) event that three federal ministers are referred for prosecution, prosecuted and convicted of contempt, the judges may find themselves determining when Australians will next go to the polls. That will be a very uncomfortable situation indeed, for the High Court. As Bell J candidly concluded: ‘placing judges under the microscope, … as you may have gathered, we resist to the death.’

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

5 thoughts on “News: Bell J on ‘The Individual Judge’

  1. It was also my impression that “she didn’t have a single good thing to say about any of the papers inside it”. Most of the papers (and certainly ours) were designed to elicit a reaction and get people thinking. The special issue achieved that. The fact that Bell J seemed to disagree with most of the content makes it even better!

  2. A great post Jeremy, thanks.

    Forgive me for finding a tangent other than the central point of this post.

    I found the reference to Ginsburg mugs very interesting as an important differentiation between the SCOTUS and High Court justices, and the politicisation thereof.

    However, while I somewhat agree that it is a good thing that many people might not know of the CJ and Js in the High Court (a phenomenon I’ve noticed with my own pols students), I can’t help but wonder if this also stems from the conspicuous absence of a “bill of rights” in our own constitution.

    Consider the SCOTUS ruling on gay marriage, stemming from the equal protection clause, and contrast with the hypocrisy and inaction amongst Aus elected officials. This is one of many examples that could explain the difference in, per Bell J’s comments, “the ability to name”. And perhaps, contra to Bell J’s inference, this is a bad thing for Australia.

    The question of whether justices should be political animals yields a clear answer: they should not. Instead, as per Stevens J in Bush v Gore (2000), they should be “impartial guardians of the law”.

    However, the extent to which laws impact on our lives, rather than the strict politicisation of judges themselves, may better explain the disinterest amongst Australians.

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