Today’s news, as welcome as it is unsurprising, officially confirms that the next High Court will be the Kiefel Court. Here are some features of the new Court that will commence on 30th January 2017:
- Susan Kiefel, age 63, appointed by Howard government until 17th January 2024
- Virginia Bell, age 65, appointed by Rudd government until 7th March 2021
- Stephen Gageler, age 58, appointed by Gillard government until 5th July 2028
- Patrick Keane, age 64, appointed by Gillard government until 26th October 2022
- Geoffrey Nettle, age 66, appointed by Abbott government until 2nd December 2020
- Michelle Gordon age 52, appointed by Abbott government until 19th November 2034
- James Edelman, age 43, appointed by Turnbull government until 9th January 2044
With Edelman J ( a Supreme Court judge later Federal Court judge, from WA) replacing French CJ (previously a Federal Court judge from WA, appointed by the Howard government), the Court’s diversity in appointing party, gender, geography (alas for South Australia) and prior positions remains unchanged. However, Edelman J is the Court’s first appointee born in the 1970s, just as Gordon J before him was the Court’s first appointee born in the 1960s.
Assuming no early resignations, these are the last new appointments to the High Court for four years. The next (or so) Prime Minister will then have the opportunity to replace Nettle J and Bell J in quick succession in 2020/1, followed by Keane J in 2022. If Kiefel CJ stays for her full term, then the next most senior judges will be Gageler J, Gordon J and Edelman J. As Gageler J will have only four years remaining on the Court (although Brennan CJ was appointed in similar circumstances), a Gordon Court from 2024-2034 and an Edelman Court from 2034-2044 would be a solid bet.
A Gordon court from 2024 would be a break with the tradition that only the senior puisne justice is appointed CJ-as with Isaacs,Gavan Duffy,Dixon,Gibbs,Mason,Brennan and now Kiefel.If someone outside the Court is appointed in 2024 it might put an end to Gordon’s chances.
Hmmm, yes, but I think that that tradition is really a feature of the pre-referendum period when there was no age limit on judicial appointment (and, hence, appointing someone other than the senior would be a clear snub.) Now, despite Brennan CJ’s appointment for three years (which also coincided with Deane J’s resignation), there’s a reasonable argument that there’s value in having a reasonable length of appointment for the CJ and hence passing over (without, arguably, snubbing) senior judges who have a relatively short time to go.
I should also add that I think the whole ‘senior’ designation, which is the crux of this tradition, is silly (including all the seating positions and the order of judgments, the latter not the practice in many other apex courts.). Given that nearly all judges have lengthy pre-HCA judicial careers, who cares precisely who has spent the longest time on the HCA bench?
QCs/SCs also have this seniority hierarchy that is not necessarily commensurate with length of experience, but in practice does anyone care?
Jeremy,I agree with you,but it is easier said than done!
Surely a new Chief Justice could shake up some of these flawed traditions! (I’m watching to see whether Kiefel CJ maintains the ‘maiden’ judgment tradition.)
What other apex Court in a common law country that delivers seriatim opinions does not deliver them in order of the seniority of the judges?
UKSC (e.g.: http://www.bailii.org/uk/cases/UKSC/2015/17.html.) NZSC (e.g. http://www.nzlii.org/nz/cases/NZSC/2015/198.html.) SC Canada (e.g. https://www.canlii.org/en/ca/scc/doc/2015/2015scc46/2015scc46.html).
Also, Ireland, e.g. http://www.bailii.org/ie/cases/IESC/2016/S37.html.
Thanks Jeremy.
These Courts appear from my cursory look to order judgments majority first, then minority but in order of seniority within those categories. Is that correct?
Do you think this is a better approach? Or do you have a different suggestion?
How do you think the Court ought to organise seating of multiple judges? (My mind wanders back to high school and rushing for the seating in the back corner)
I certainly think the dissents should go last, whoever they are. And I think it makes sense to put a plurality judgment that makes up the majority of the bench first. (Broadly, majority first, but that’s sometimes hard to work out on the HCA.) Within those rules I couldn’t care less. Possible orders: alphabetical. Longest judgment to shortest judgment. Shortest judge to tallest judge. Oldest to youngest. Women and children first. Robson rotation. The sad thing is that anyone cares…
I certainly don’t care about seating order and I’m again sad that anyone does after primary school. My only though is that they should mix things up from case to case. It seems sad that Gordon J and Edelman J will never get to sit next to eachother (at least until one of them becomes CJ.) Given the HCA’s practice of having ‘pairwise’ deliberations on the bench, it seems a pity to have fixed pairings.
A recent judgment of the Constitutional Court of South Africa may be of interest: http://www.saflii.org/za/cases/ZACC/2016/39.html
After the CJ, the judges are listed alphabetically, as is customary. Note that an acting judge is listed before regular ones. I don’t know if they also sit on the bench this way.
The judgments are ordered Main minority-Main majority-Concurring minority-Concurring majority. It is not uncommon there for the minority to precede the majority. My guess is that they are listed as they were prepared, first in-first listed. This is not necessarily an easy way to read the final product.
Nothing wrong with a clear seating order, saves unsightly jostling for the best spot.