26th January 2019 marked not only the anniversary of Captain Cook’s the First Fleet’s settlement invasion of Australia but also the addition of various people to the ‘Order of Australia’, including nineteen new Companions of that Order, a group that now numbers over 500 Australian civilians. As well as singer Olivia Newton-John, tennis player Roy Emerson and children’s author Jennifer Rowe, the latest batch includes two sitting High Court justices:

The Honourable Justice Michelle Marjorie GORDON Parkes ACT 2600 For eminent service to the judiciary, and to the law, to legal education and judicial administration, as a role model, and to the community.

The Honourable Justice Geoffrey Arthur NETTLE Kingston ACT 2604. For eminent service to the judiciary, and to the law, to criminal and civil appeals reform, to legal education, and to professional standards.

Honours for sitting High Court justices are nearly always for ‘services to the law’ – and, since French CJ’s award, ‘for eminent service’ to either ‘the law and the judiciary’ (French CJ & Kiefel, Keane and Gageler JJ) or ‘the judiciary and the law’ (Bell J and, now, Gordon & Nettle JJ.) Justice Gordon is the first High Court justice to be cited as a ‘role model’.

This year marks the first time in three decades that two justices have been honoured in a single year. While this likely reflects the two awardees’ near contemporaneous appointment, the pattern of honours for High Court justices after the abolition of Australian knighthoods is complex:

Justice McHugh’s unusually speedy honour followed the mass honouring of six of the Court’s bicentennial bench (all ‘for service to the law’.) The next two appointments to the Court (six years later) included Kirby J, who already had an AC (‘for service to the law, to law reform, to learning and to the community’); Gummow J’s honour the following year (‘for service to the law as a Justice of the High Court of Australia’) brought the justices’ honours back in synch with their seniority. The same appears true for French CJ, who spent just over a year as Chief Justice less honoured than four sitting puisne justices. Putting those appointments aside, the average wait for a sitting High Court judge to be honoured is three years and four months, with no judge waiting longer than five years. This means that Edelman J can expect his gong around the Queen’s Birthday awards next year and no later than Australia Day 2022. The reasons for the variation in the timing of awards to sitting justices are unclear. One possible explanation is the annual quota of 35 ACs, together with a bar on renominating less than three years after a previous failed nomination. Clearly, the timing cannot reflect any assessment of the justices’ work while on the Court.

Recently, Nick Gruen questioned the whole system of tiered honours:

It’s almost Australia Day and hundreds of us are in line for an award. Sadly, as unpublished research by my firm Lateral Economics reveals, many will get it for little more than doing their job. And the higher the job’s status, the higher the award. Governors-General, High Court justices and vice chancellors of major universities would hope for the highest Companion of the Order (AC). Professors, public service departmental heads and senior business people should hope for the next one down — an Officer of the Order (AO). School principals would generally slot in next for Members of the Order (AM). If you’re lucky, or you’ve done your job extraordinarily well, you’ll be promoted one rank, but that’s pretty much it. Meanwhile, those who succeed in some achievement principally in and for their community usually qualify for the lowest award, if that; the Medal of the Order (OAM). And usually only if they’ve become conspicuous. The level of gratitude among recipients seems to follow an equal and opposite arc. Those at the bottom seem the most thrilled for being recognised the least….

(Note that heads of the senior courts in states and territories usually get the top-tier AC alongside all of the High Court.) Gruen’s suggested reform would dramatically change this:

Here’s an idea. Why don’t we award honours to encourage people to do more than their job? In a world which is lavishing increasing rewards on the “haves”, the worldly rewards for doing your job need little bolstering. Knowing awards are reserved for people who do more than their jobs might encourage us to choose more selfless and socially committed lives at the outset of our careers.

On this approach, current High Court judges – who are ethically forbidden from doing much ‘more than their job’ – would generally not qualify for any award unless they achieved distinction in their pre- or post-bench lives.