News: Crennan J stops hearing cases ahead of retirement

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.

By contrast, the equivalent provision in Australia’s Judiciary Act doesn’t contemplate (and presumably bars) a former High Court judge from issuing an opinion on a reserved judgment.

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.

This entry was posted in News, Opinions by Jeremy Gans. Bookmark the permalink.

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.

4 thoughts on “News: Crennan J stops hearing cases ahead of retirement

  1. See this transcript for a current example of the problem. The case is a constitutional challenge to NSW’s ban on political donations by developers, in the context of an ICAC investigation into an alleged illegal donation. It appears from the transcript that the parties were aiming for a February hearing, but that is no longer possible. However, it seems that the challenger is keen for some sort of ruling on the issue ahead of state elections in NSW.

    As Gageler J points out, ‘The difficulty, moving on from February, of course, is finding seven Judges to hear a constitutional matter.’ That is not a reference to Crennan J’s retirement (she will have been replaced by then), but rather Hayne J’s (as he will presumably stop hearing cases by then pending his own constitutionally mandated retirement mid-year.)

  2. The ABC today reports Crennan J’s early retirement, stating: “Plans for her early retirement were quietly put in place earlier this year, with the Governor General informed in June. Justice Crennan’s decision was prompted by the fact Justice Kenneth Hayne will also retire next year, within weeks of her original retirement date in July. That would have left the court with only five justices for a time, making it difficult to consider constitutional cases.”

    Although not attributed, this confirms that Crennan J’s retirement has been known by officials for around six months. (Indeed, an article in last Friday’s Australian, in its Legal Affairs section, was seemingly unaware that Crenann J was leaving early, despite the farewell ceremony a week earlier and George Williams’s column.) The report does not explain why the public was not informed immediately (as per the Canadian practice.)

    As well, the ABC report suggests that the Australian practice of judges not hearing cases in the months before their retirement is actually why Crennan J left early (effectively costing the government around $100,000 in additional pension), so as to avoid the difficulties of 5-judge benches for important and constitutional matters. (Again, the Canadian practice would avoid the need for an early retirement, albeit not the extra cost.) The report does not explain why it was Crennan J, rather than Hayne J, who volunteered to leave early.

  3. The latest High Court bulletin now shows three constitutional cases to be heard in the High Court’s February sittings. All would typically have seven judges. They will be the first cases for Crennan J’s as-yet-unannounced replacement, and (if he has not already stopped hearing cases by then) Hayne J’s final hearings.

  4. Pingback: Man Haron Monis's poison letters split the High Court and laid bare a flaw in the system | Em News

Comments are closed.