News: Nettle J joins the bench

On Tuesday morning, the High Court held a ceremonial sitting for the swearing-in of Nettle J as the Court’s fiftieth judge, attended by all six of his future colleagues, thirteen of his former colleagues on the Supreme Court of Victoria, nine of Australia’s eleven Chief Justices and a multitude of senior lawyers and former judges. Video of the ceremony (the first such to be posted on the High Court’s website under its new audio-visual policy) captures the moment when Nettle J strode directly up to French CJ and announced his commissioning by the Governor-General. He  took an oath of allegiance and of office – a choice also taken by every other new High Court judge in the past two decades bar one – and then his seat on the bench. As in all High Court ceremonies, the bulk of proceedings were taken up with speeches from senior lawyers lauding the new judge, beginning with federal Attorney-General George Brandis, who said that he ‘can scarcely remember an appointment to this Court which was so seamless, so free of controversy, and so universally appraised.’

While the bulk of the ceremony looked to Nettle J’s past, its last fourteen minutes provide a glimpse of the Court’s future. Two parts of Nettle J’s swearing-in remarks are especially illuminating. Near the start of those remarks, he commented on his status as the Court’s oldest appointee to date:

The selectors may have backed a wild card, as the press put it, but, if one looks at the matter objectively, the selectors have also capped the risk. Given the constitutionally entrenched statutory age of senility of 70 years, and that I am now three score years and four, any damage I might do in the time which remains available is bound to be relatively limited.

(Attorney-General Brandis had earlier insisted that Nettle J’s ‘selection was based upon one criterion and one criterion alone, your outstanding ability as a lawyer and as a Judge’, implying that the many who had correctly predicted that Crennan J would be replaced by a Victorian should try their luck at Tattslotto.) Despite being the third eldest of the current judges, Nettle J will sit in the Court’s most junior position to the Chief Justice’s far left, beside a man seven-and-a-half years younger than him, and his sole-authored judgments will be listed last in law reports. In June, when Hayne J is replaced, he will move to the far right of the bench and may well remain there until his retirement in late 2020.

His remarks conclude with his observations of the Court itself. Recalling his first experience in the Court as an instructing solicitor with Barwick CJ presiding (possibly in this case), he then listed landmark cases of the later Gibbs, Mason and Brennan courts that were ‘unimaginable in the time of the Barwick court’. (He did not cover the Gleeson or French courts because, he said, ‘short-term comparisons are problematic’.) Likening the last forty years to ‘beholding the spiral of the Zeitgeist’, he concluded:

I trust you will not think me presumptuous to observe that, as exemplars of the pace and magnitude of the Court’s development of Australian law over the last 40 years, even the few cases I have mentioned this morning bespeak a fluidity of approach and depth of understanding which by the standards of their day was phenomenal and which by any standards remain inspiring. Consequently, to say that I am excited about beginning on the task to which I have been sworn this morning would be a very considerable understatement.

Although he disclaimed any reflection on either the correctness or desirability of such change, his comments will also excite those who closely follow the Court’s work.

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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.

2 thoughts on “News: Nettle J joins the bench

  1. In writing this post, I noticed a discrepancy between the audio-visual recording of the swearing in and the transcript (on Austlii). In the video recording (at 44:00-44:20), Nettle J remarks:

    Was it not also unimaginable in the time of the Barwick court, and perhaps even in the early years of Sir Anthony Mason’s leadership that, less than 20 years later, a majority of the Brennan court (although not Sir Gerard) would discern in Kable a constitutionally implied limitation on the power of the States to legislate with respect to State courts and would conclude, in Lange, that Chapter Three of the Constitution implies a freedom of political communication which transcends the common law of defamation and such if any right to privacy as there might otherwise be?

    But in the transcript, the latter reference is to ‘Chapter I of the Constitution’. The latter reflects the common view that the implied freedom of political communication is derived from ss 7 and 24 of the Constitution. It is likely that Nettle J simply mis-spoke.

    The Court website states that ‘The Court has its own Court reporting service which provides an accurate transcript of the proceedings of the High Court for the use of the Justices. The High Court’s transcript is a record of its proceedings and includes the full text of citations referred to by counsel during the hearings.’ But does ‘accurate’ refer to the fidelity of the transcript to what was actually said in the courtroom or to the correct law? At least in this case (and perhaps for all transcripts of ceremonies, but surely not for transcripts of court proceedings), the answer appears to be latter.

    • It may well be that the “transcript” utilised the script of Justice Nettle’s speech- a practice that saves time but also occasionally catches out Hansard (and reporters) when they do not notice a speaker departing from the pre-supplied text. Happily, this sort of short cut cannot really occur with court transcripts.

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