UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.
Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says:
The public service that is done by the delivery of joint reasons is the clear and certain statement of the law. Professional advisors can advise their clients with some confidence as to what the law is and judges can decide cases with some confidence about the rule that they are to apply. If the price of certainty and clarity is the loss of the individual judge’s voice, I suspect very few outside the Academy would count that a bad thing. The results of Partovi and his colleagues’ study are introduced with Andrew Lo’s statement
that obscuring authorship removes the sense of judicial accountability making it harder for experts and the public alike to understand how important issues were resolved and the reasoning that led to these decisions. Now, with respect, this strikes me as peculiar obduracy on the part of the Academy. The names of the judges who subscribe to the judgment are recorded above it. Each judge accepts responsibility for all that appears and under his or her name. To trespass if I may on the ghastly language of management, the process is remarkably transparent and accountable.
She adds: ‘needless to say there is no reason to think that there will be a departure from the collegial decision-making that has characterised the French High Court under the stewardardship of Chief Justice Kiefel.’ Nor, might I add, does any improvement in the relations between the High Court and the academy look likely either.
Although spoken weeks ago, some of Bell J’s remarks have a resonance in light of recent events:
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. It features a rather grim portrait of her honour under the words ‘I dissent’. How lucky we are that in Australia, outside the law faculties, very few people would be able to name the Chief Justice of the High Court let alone the six puisne justices. It is, I rather hope, inconceivable that the outcome of an Australian election might turn on whether a coalition or a Labor government would be in a position to make the next appointment to the High Court of Australia. It is undeniable that decisions of the High Court have a significant impact on our society. The reason I venture to suggest why the community is uninterested in the judges who make those decisions is because of an unstated acceptance that they are made on legal merit and not on the political or ideological sympathies of the judges.
In the (I think, unlikely) event that three federal ministers are referred for prosecution, prosecuted and convicted of contempt, the judges may find themselves determining when Australians will next go to the polls. That will be a very uncomfortable situation indeed, for the High Court. As Bell J candidly concluded: ‘placing judges under the microscope, … as you may have gathered, we resist to the death.’