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.