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.]
Post slightly edited after it went live [EDIT: and to fix maths errors identified in comments.]
For those who want to check my maths, here is my list of HCA judges’ appointment ages and sitting times. (The years may be out by one for most judges, as I only factored in months for judges at the extremes.)
JUDGE: Age at appointment – Length of sitting
Griffith: 58 – 17
Barton: 54 – 17
O’Connor: 52 – 9
Isaacs: 51 – 25
Higgins: 54 – 23
Gavan Duffy: 60 and 11 months – 23
Powers: 60 and 2 days – 16
Piddington: 51 – 1 month
Rich: 50 – 37
Knox: 56 – 11
Starke: 49 – 30
Dixon: 43 – 35
Evatt: 36 – 10
McTiernan: 38 – 46
Latham: 58 – 17
Williams: 51 – 18
Webb: 59 – 12
Fullagar: 58 – 11
Kitto: 47 – 20
Taylor: 51 – 17
Menzies: 51 – 16
Windeyer: 58 – 14
Owen: 61 and ten months – 11
Barwick: 60 and ten months – 17
Walsh: 60 and three months – 3.5
Gibbs: 53 – 17
Stephen: 49 – 10
Mason: 47 – 23
Jacbos: 57 – 5 years two months
Murphy: 53 – 11
Aickin: 60 and 6 months – 5 years nine months
Wilson: 57 – 9 years and 9 months
Brennan: 53 – 17
Deane: 51 – 13
Dawson: 49 – 15
Toohey: 57 –
Gaudron: 44 – 16
McHugh: 54 – 16
Gummow: 53 – 17
Kirby: 57 – 13
Hayne: 52 – up to 17
Callinan: 60 and six months – 9
Gleeson: 59 – 10
Heydon: 59 and 11 months – 10
Crennan: 59 – 9 years and 3 months
Kiefel: 53 – Up to 17
French: 60 and 6 months – Up to 10
Bell: 58 – Up to 12
Gageler: 54 – Up to 17
Keane: 60 and six months – Up to 10
Here is a link to the Attorney-General’s press release: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/FourthQuarter/4December2014-AppointmentOfTheHonourableGeoffreyNettleToTheHighCourtOfAustralia.aspx
The release also appears to be the first official confirmation of Crennan J’s retirement date.
Kenneth Jacobs is still alive (97 years of age). He left the High Court due to an illness from which he recovered.
Thank you Jason! I have corrected the post. All further corrections welcome!
For interest, here is a contemporary news story about the retirement of Jacobs J. Of interest is discussion of the problem of an incomplete bench and speculation about Jacobs J’s replacement. On the latter, the article stated:
As it happens, Wilson J was Jacobs J’s replacement, followed two years later by Brennan J and Deane J.
Seems the commentariat was more accurate in 1979 than it was for this appointment. I did not see Justice Nettle’s name mentioned in connection with the vacancy.
Indeed. That is solely due to his age, I’d say, as in 1979. It was almost two decades before a judge was appointed to the HCA outside the 48 to 58 age range relied on by the Sydney Morning Herald.
Using you figures above I have done some quick calculations. All figures below include Justice Nettle on the assumption he is 64 at appointment.
The median age of all judges appointed to the Court is 54.
The median age of judges appointed since the 1977 amendment (commencing with Justice Wilson and excluding the re-appointments of Chief Justices Gibbs, Mason and Brennan) is 57.
The median age of judge appointed since 1995 (commencing with Justice Gummow in 1995) is 59.
It is clear that older judges are increasingly being appointed to the Court resulting in a more turnover on the Court due to the mandatory retirement age of 70.
Indeed, since the gap of 7 years since the appointment of Justice McHugh in 1988 and Justice Gummow in 1995, the longest period of time in which the Court had the same membership was a little under 5 years from Chief Justice Gleeson’s appointment in May 1998 to Justice Heydon’s appointment in February 2003.
Since Justice Heydon’s appointment, there has been a retirement and new appointment on average every 2 years.
No worries Jeremy.
Another correction. Justice Toohey served slightly less than 11 years on the Court (6 February 1987 – 2 February 1998).
The longest serving justice appointed since the 1977 referendum was Justice Gummow at 17 years, 5 months. If Justice Hayne serves until his mandatory retirement he will surpass Justice Gummow and have served 17 years 8 months.
The longest serving justice to whom the 1977 constitutional amendment applied was Chief Justice Mason at 22 years, 8 months. Despite being first appointed to the Court in 1972, the amendment applied to Chief Justice Mason (as it did to Chief Justice Gibbs before him) because of his acceptance of a separate commission as Chief Justice after the amendment came into effect.
Thanks again. Edits made. I’ve left the detail about Chief Justices and currently sitting judges to the comments. An analogous short appointment to that of Nettle J is Brennan J’s appointment to Chief Justice for just three years by the Keating Government.
On the issue of Gibbs CJ and Mason CJ, s72 of the Constitution says:
I must say that this is not a model of clarity when it comes to the question of whether or not Gibbs CJ and Mason CJ are subject to the mandatory retirement age.
Although Chief Justice Brennan was was at the time the senior puisne judge and his appointment was consistent with those of Chief Justice Gibbs by the Fraser government and Chief Justice Mason by the Hawke government who were both the senior puisne judges at the time of their appointments as Chief Justice.
Chief Justice Gleeson’s appointment marked a departure from that method of appointment of the Chief Justice. This was likely influenced by the fact that Justice Gaudron was the senior puisne judge at the time of Chief Justice Brennan’s retirement and she had considerable past links to the Labor Party. Her appointment was likely discounted by the Howard Government for this reason.
Justice Gummow was similarly passed over on the retirement of Chief Justice Gleeson, despite his having been appointed by a Labor government (Keating) and a Labor government choosing Chief Justice Gleeson’s successor (Rudd). He was reported to be strongly favoured by his colleagues for appointment.
Chief Justice French’s retirement will present an interesting opportunity. Assuming he serves until he is 70, he will retire in March 2017. Justice Kiefel will be the senior puisne judge and still have nearly 7 years remaining before mandatory retirement (January 2024). It would present a golden opportunity to appoint the first female Chief Justice. However, she was first appointed by the Howard government and is strongly associated with the ‘black letter’ conservative label (fairly or not) so her appointment as Chief Justice may depend on the political persuasion of the government of the day. That being said, the opportunity to appoint the first female Chief Justice would particularly appeal to a Labor government.
All very interesting for us High Court tragics.
Your point about Kiefel J is spot-on, I’d say (although appointing a woman directly to Chief Justice would be similarly appealing from this standpoint.) It is also interesting to the (highly speculative) extent that it may influence Kiefel J’s decision on whether or not to retire early.
On Gleeson CJ, there was of course a precedent in Barwick CJ, which would presumably have provided some cover for the Keating government had (again, just speculating) Gummow J been appointed directly to Chief Justice to replace Mason CJ.
The Howard government’s appointment of Chief Justice Gleeson was indeed consistent with the appointment of Chief Justice Barwick directly to that position.
Furthermore, it was consistent with the approach to the appointment of Chief Justice of conservative governments of the past. Excluding Chief Justice Griffiths (who was appointed by a conservative government – Deakin, Protectionist), the 3 Chief Justices appointed directly to the Court prior to Chief Justice Gleeson were all appointed by conservative governments:
Knox – Hughes, Nationalist
Latham – Lyons, United Australia
Barwick – Menzies, Liberal
In the case of Chief Justices Latham and Barwick, they were conservative politicians at the time of their appointments.
Chief Justice French was the first Chief Justice directly appointed to that position by a Labor government.
It is the words “under an appointment made before the commencement of those provisions” that are crucial.
The office of Chief Justice is separate from that of a Justice of the Court. This is recognised by specific reference to the office in section 71 of the Constitution. Therefore an existing Justice of the Court must nonetheless be appointed to the office of Chief Justice. In the case of Chief Justices Gibbs and Mason that was thus an appointment made after the commencement of those provisions.
Obviously both could have avoided the mandatory retirement ago by declining appointment as Chief Justice. Indeed, Chief Justice Mason could conceivably still be on the Court had he done so.
I agree with your analysis. It’s just surprising to me that the provision didn’t simply expressly say that it applies to judges sitting at the time of the referendum who are subsequently made Chief Justice.
Although very unlikely, the uncertainty leaves open the possibility of the HCA itself being asked to rule on this matter, similarly to (but perhaps even worse than) the position the Supreme Court of Canada was in earlier this year.
The possibility is of course now academic due to no Justice appointed before 1977 remaining on the Court.
The unseemly Canadian case is not without comparable cases here. I am thinking of the High Court consideration of acting Judges in State Supreme Courts although the name of that case escapes me just now.
Unless, of course, the government opted to appoint a pre-1977 judge from retirement to Chief Justice! (The three options would be Stephen J, Mason CJ and, as you previously pointed out, Jacobs J!)
You’re thinking of Forge v ASIC? Although I think the HCA ruling on the validity of non-HCA appointments isn’t so unsettling. I speculated in this post that a possible challenge could be brought to the appointment to the HCA of a former Australian lawyer now serving on an international tribunal, for example James Crawford?
Such a small thing, but you’ve mistyped Piddington J’s name as ‘Paddington.’
Thanks. That being said, Piddington would be a better subject for a feature film than most HCA judges.
I think the chances of there being a challenge to the appointment of a High Court justice are minimal. Firstly, there are few formal qualifications in the Constitution and even those are easily met. However, more importantly, appointments to the High Court are not (overtly) political and Federal governments rarely court controversy with appointments.
The situation in Canada appears to me (from my limited knowledge of Canadian politics and law) to have arisen due to the conservative government trying to find an appointment to a Quebecois seat (reserved by the Constitution) who was legally and perhaps politically acceptable to the government, Quebecois not being noted for their support of the Canadian Conservative Party.
The possibility of a Federal government in Australia courting similar controversy by, for example, appointing a person in the position of James Crawford seems to me unlikely. Regardless of such an individual’s claims to appointment on merit, I think it unlikely a government would make such an appointment.
Add to that the fact that the media and public in Australia have little interest in judicial appointment or appointment controversies. Even where it is open to question whether there is some ulterior purpose to an appointment (it would be unfair to give example but there are recent ones from both Coalition and Labor governments) it receives little or no comment in mainstream media. Governments have little interest in opening up yet another avenue for conflict and criticism.
The Australian now reports that Geoffrey Nettle was born on 2 December 1950. It was presumably an especially happy birthday for the judge this week.Section 72 means that High Court judges are a little more vulnerable to identity theft, although it would take a bold thief.
If correct, this means that he will be 64 and 2 months when he starts on 3 February 2015, 2 years and four months older than Owen J when he was appointed. He will have to retire on 2 December 2020, giving him a maximum of five years and 10 months on the bench, the fifth shortest stay on the Court and three years and a half years less than Crennan J (the shortest stay for a post-1977 appointee.) Unless a judge leaves early, he will be the third judge from now to retire, after Hayne J next year and French CJ in 2017.
A surprisingly short stay indeed, and a surprisingly safe and (on merit) uncontroversial choice considering the outspoken nature of the government of the day and the Attorney-General of the day. One wonders if the combination of the need to appoint a Victorian and the desire to avoid yet more controversy led to this – a good choice, but one which this government will (if it gets a second term) have the opportunity to replace.
It will be very interesting to see if the government makes a similar choice when replacing Justice Hayne.