Today brings an end to recent speculation about the next appointment to the High Court. The Australian reports:
GEOFFREY Nettle, a “brilliant” judge of the Victorian Court of Appeal, has been named as the Abbott government’s first appointment to the High Court. Justice Nettle will replace Justice Susan Crennan, who will retire from the bench on February 3, five months ahead of schedule. Attorney-General George Brandis made the announcement this morning at Parliament House in Canberra. He walked out of the room immediately after making the announcement without taking questions.
Justice Nettle’s appointment is unsurprising in many respects: he is a Victorian (replacing another Victorian, Crennan J), a graduate of the ANU, Melbourne Law School and Oxford (see Katy Barnett’s discussion of High Court judges’ education), a sitting judge (like most recent appointments) and (in my and many others’ opinions) one of the best judges in Australia. He is also male, meaning that the High Court’s number of female judges will drop to just two out of seven, but that number may be short lived depending on who replaces Hayne J next year.
And yet, the recent speculation about Crennan J’s replacement discounted Nettle J as a possibility for just one reason: his age. Justice Nettle’s wikipedia page states that he was born in 1950 (but does not specify a birthday), meaning he will be either 64 or 65 when he first sits, easily the oldest ever appointee to the High Court. Assuming that Wikipedia’s birth and appointment information – and my arithmetic [see comments below!] – are correct, he is some three years older than the previous oldest appointee, Justice William Owen, who was aged 61 and ten months old when he was appointed in 1961, who is a year older than the next oldest appointee, 1964’s Chief Justice Garfield Barwick. The youngest appointees are Justices Herbert Evatt and Edward McTiernan, respectively 36 and 38 when they were appointed together in December 1930.
The main reason that Nettle J’s age is a surprise is because of a provision inserted into s72 of Australia’s Constitution by referendum in 1977:
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
This means that Nettle J’s stay on the High Court bench (and hence his – and Brandis’s – resulting ‘influence’ on the national court) will last no more than six years. Just two other High Court judges have had a similarly short term: Justices Kenneth Jacobs and Keith Aickin sat respectively for five years and two months, and five years and nine months, due to, respectively, illness and death in office well short of turning 70. (There is also Albert Piddington, who resigned after just one month and never sat on the Court and Justice Cyril Walsh, who died after three-and-a-half years in office.) Of judges appointed since 1977, the shortest stay on the bench has been Crennan J’s, at nine years and four months, while the longest has been Justice William Gummow at 17 and a half years. The longest stay overall is McTiernan J’s 47 years, until his retirement at age 84, a year ahead of the 1977 referendum. [This para corrected in light of maths errors identified in comments, below.]