A long rumoured appointment to the High Court was announced yesterday:
Today, his Excellency the Governor-General accepted the advice of the Government to appoint the Honourable Michelle Marjorie Gordon, a Judge of the Federal Court of Australia, as the next Justice of the High Court of Australia. Justice Gordon will replace the Honourable Justice Kenneth Hayne AC, who will reach the statutory retirement on 5 June 2015.
Very much like Hayne J’s own appointment in 1997, Gordon J’s is entirely orthodox given the usual criteria of merit and geographic (and, in Gordon J’s case, gender) diversity on the Court. Like Hayne J (whose appointment by the Howard government was also ‘not unexpected in legal circles’), Gordon J’s appointment is perceived by some to be consistent with the federal government’s conservative politics. In contrast to the recent novelty of Nettle J’s status as the Court’s oldest appointee, Gordon J (aged 50) is the Court’s youngest appointee since Gaudron J (aged 44 in 1987), a distinction held until now by Hayne J (appointed at age 52.)
Justices Gordon and Hayne have one more thing in common: journalists looking for an angle in the unremarkable have focused on their spouses. When Hayne J was appointed in 1997, the Sydney Morning Herald described a 1990 fraud case that ‘proved Hayne J’s credentials to the Sydney Bar’ and added:
The Occidental case also changed Hayne’s life more fundamentally; his instructing solicitor was Michelle Gordon, a young solicitor at Arthur Robbs. Three years later, in 1995, Hayne divorced his wife of 25 years, with whom he had four children, and married Gordon, now a barrister. They recently had a son. The saga shocked legal circles, and is the only outwardly distinguishing feature of a standard establishment career in the law….
Journalist Margo Kingston did not explain why Hayne J’s personal life is in any way a ‘feature’ of his legal career. Similarly, none of the many articles on Gordon J’s appointment that led with the fact of her marriage to a High Court judge explained why this (unprecedented) fact was otherwise remarkable.
Beyond being perhaps a minor milestone in Australian legal institutions’ slow progress towards gender equality, the only legal implications of Gordon J’s and Hayne J’s relationship are the possibilities of apprehended bias. Kingston’s article noted that Hayne J (while on the Victorian Supreme Court) once recused himself from a case where Gordon J (then a barrister) was acting, a step he repeated at least once on the High Court in an appeal from a matter where Gordon J was the primary judge. Justice Hayne’s retirement four days before Gordon J joins the national court forecloses any similar conflicts in the future, though perhaps there will be some continuing scrutiny of Gordon J’s position in future cases where Hayne J’s earlier judgments are considered. None of these things seems to be different from routine instances of possible apprehended bias that are commonplace in small and closely knit legal communities.
Picking up on the final paragraph, a quick investigation indicates that Hayne J has a practice of not sitting when Gordon J was the primary judge or a member of a full bench. A search for Gordon J’s name among HCA cases in Austlii reveals the following cases, which may not be exhaustive (as the search terms only captured cases where Gordon J was “name-checked” either as the primary judge or as a co-author of a joint judgment):
Andrews v Australia and New Zealand Banking Group Ltd  HCA 30 (primary judge)
Commissioner of Taxation v BHP Billiton Ltd  HCA 17 (primary judge)
Spriggs v Federal Commissioner of Taxation  HCA 22 (primary judge – the tax case referred to at your link)
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd  HCA 33 (member of FCAFC)
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd  HCA 8 (member of FCAFC majority, writing jointly with Finkelstein J)
On a completely different matter, Gordon J’s entry in Who’s Who indicates (contrary to what was reported in several news articles) that she is 50, not 51.
Thank you. I agree that the pattern of recusals is clear. (I have previously bemoaned the lack of public announcements of recusals by the HCA, reducing us to such guesswork. A minor concern, admittedly.)
I had noticed the discrepancy on age reports but had (wrongly) assumed that it reflected the difference between her age now and her age on joining the bench. However, wikipedia reports her age as 19 November 1964, making her 50 now (and 50 2/3 on appointment) and due for retirement in late 2034. I’ll edit the article accordingly.
Aren’t you forgetting Gaudron J? At 44, she was younger when appointed than Dawson J (who had been appointed at 48).
Oh, yes. Thank you. I’ve changed the relevant sentence to focus on a different similarity between Gordon J and Hayne J.
I suppose the spousal issue is noted because otherwise the story would be ‘boring’ to the average reader.
A similarly pointless fact found its way into The Australian’s initial article on the judgment in the Cunneen case where the journalist (a female amazingly) noted that Ms Tilley had breast implants, a fact which was completely unrelated to anything reported in the article.
I don’t think the spousal issue (at least for Gordon J’s appointment) is un-newsworthy (it is, after all, seemingly unprecedented); rather, I think its presence as the lead required some explanation. There are a number of angles that perhaps could have been taken – nepotism in the appointment process? the possibility of Hayne J’s continued influence on the Court? an unfortunate caveat on the Court’s gender diversity? – but the media wasn’t willing to go there (for good reason.) I’m sure you’re right that the answer is to interest a bored public: ‘Otherwise boring court staffing matter has a (sorta) sexy angle’. That’s why I drew the analogy to Hayne J’s appointment. Personally, I can’t think of a duller topic than the personal lives of judges.
The detail about Sonia Tilley’s breast implants had passed me by (again, a perhaps sad indication of what catches my eye in these matters.) However, some googling reveals that her implants aren’t irrelevant to the case, as they supposedly provided a factual basis for a supposedly false supposed claim (supposedly encouraged by Cuneen) that supposed chest pains supposedly prevented her from taking a breath test.
Gordon is an excellent lecturer, lawyer and charitable person but a poor judge. The AFR Editorial on Thursday last agrees: http://www.afr.com/opinion/editorials/poor-judgment-on-the-high-court-20150416-1mltrc
I believe it sets back the women’s movement by promoting cronyism instead of merit. Also whilst Women 5 v Men 47 after this appointment we continue to have SA 0 v Rest 52 and TAS 0 v Rest 52. A female jurist from SA should have been an option instead of this poor appointment.
Here is my take on Gordon’s judicial qualities:
Australian High Court judge = $529,190
US Supreme Court judge = $246,800
The Hon Justice Gordon and Hayden J (retired) will take home $821,078 in their first High Court year. Is that a fair price for nepotic cronyism for the taxpayer? Why does such a fat cat superannuation system still exist?
Appointments like this one undermine public confidence in the judiciary.
Australia needs a judicial appointments commission to prevent such cronyism from happening again. See:
“In a democracy, every educated citizen should have an understanding of the role of the judiciary, the manner in which the courts function and the history of the
relationship between the courts and other organs of government. This is particularly important because … the independence and authority of the judiciary, upon which the maintenance of a just and free society so largely depends, in the end has no more secure protection than the strength of the judges themselves and the support and confidence of the public.”
Sir Harry from Cunningham (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond, (1997) at v