A Judge With Time On Her Side

by Jack Waterford - Canberra Times

Remember one thing about the newest appointment to the High Court, Justice Susan Kiefel, that is more important than recording her as a woman, a Queenslander, or trying to pin her as liberal, Tory, centrist or authoritarian. She is only 53 and will, deo volente, still be on the High Court in 2024. By then, each of her present colleagues will have been long gone, in most cases long forgotten. The last two to leave, Ken Hayne and Susan Crennan, will have been gone nine years.

She will probably also outlast about three of the judges appointed by the next government, including the chief justice appointed to replace Murray Gleeson next year, and the judge appointed to replace Michael Kirby when he retires by March the year after.

That's a long time to make an impression, and to leave a mark, on the court. One need not hit the ground running, nor display one's talents all at once. And long before she is the most senior judge, she will probably have had time to carve a majority position, not least if, as will inevitably happen sooner rather than later, the court is expanded from seven to nine.

If that were done, say, in 2010, more than half the judges on the court will be junior to her.

Kiefel is already an able and competent judge (she has been on the Federal Court for 13 years), and, on form, likely to sit comfortably in the court's middle, unlikely to challenge the intellectual dominance of Bill Gummow or the judicial technique and method which his sheer industry has imposed upon all of his colleagues. But nor is she likely to be overawed, whether by Gummow or some of the other formidable judges, such as Gleeson and Dyson Heydon; she is a tough and practical operator who can stand up for herself, and will never be the mere vote that two of the present number, Hayne and Crennan, have effectively become.

Some will make assumptions about her politics and her temperament simply from the fact that she has been chosen by a government which, from the Prime Minister down, pays great attention to such matters. They would be mistaken if they expect her to be either a capital-C conservative, or, as a Queenslander from the backwoods, some sort of state-righter in the mould of famous Queensland High Court judges, such as Samuel Griffith, Harry Gibbs, the soon-to-retire Ian Callinan or (if only by a tinge) Gerry Brennan.

Actually, she is by temperament and instinct rather more to the small-L liberal side of politics, and some of those who have assumed otherwise have drawn the wrong conclusions from her tepidness about public feminism, self-conscious female solidarity, or willingness to be a banner girl for women's achievement.

It is not for want of significant achievement as a woman, including being the first female silk in Queensland, and only the second judge (after Michael McHugh) to make the High Court without an undergraduate university degree. Nor for want of acknowledgement of the struggle of women to achieve full citizenship. It is certainly not because she thinks she climbed to her heights without help from the struggle.

It is, rather more, the diffidence of someone who would prefer to have it said of her that she was appointed because she was an appointable person who happened to be a woman rather than because she was a woman who happened to be appointable. In that she is probably right, even if, from the Government's point of view, the advantage of appointing a woman is great.

She is conservative in the sense that she is essentially fairly unadventurous, without any great vision of playing the law reformer, the social reformer, or being, as Gummow sometimes seems to want to be, the great synthesiser, knitting every strand of the law into one nice bootie.

As it happens, the court, for far as the Government is concerned, is in fairly safe hands, with only the pesky Kirby ever doing anything much to stir up political or judicial complacency.

Oddly, it was that capital-C conservative, Ian Callinan, who proved the next most likely to break the smug consensus, if, generally, for different reasons. Callinan's troublesomeness is not merely from political predilection: it also comes from that fact that he, as a former knockabout general practitioner barrister, is rooted in practicality and problem solving to an extent that few of the other judges are.

Most of the others, apart from Gleeson, are theorists and philosophers first. Kiefel's jurisprudence is, likewise, rooted in practicality, common sense and fairly blank, unadorned prose.

There is nothing particularly looming on the constitutional horizon which would invite the Government to try to stack the court. On states-rights matters, Kiefel has shown herself, in Federal Court judgments, comfortably centrist; on administrative matters, expansive about executive power and discretion, if exacting about proper process. A middle-of-the-roader, if more likely than most of her colleagues to be for the little guy rather than big government.

She has already more form on most legal issues than Crennan, still fairly unknowable after a year on the Federal Court and two on the High Court and still the judge least likely to dissent.

Kiefel's appointment cannot break up the court's middle of Gummow, Gleeson, Heydon, Hayne and Crennan, which is, in any event, where she naturally belongs. Unlike Crennan, who has made almost no mark on the court, one can expect some reasons which give a flavour of her thinking, and some consciousness that results, to matter as much as the road map.

There are plenty who will wish her well. She is not famed for gregariousness, or for playing office politics, but she is not likely to be daunted, awed, or even appalled by the monastic nature of the work, or the eccentricity of her company. Many others have been.

The fact is that the court needs some change. The middle, to mix a metaphor, is in danger of disappearing up its own fundament. This is not only from its diffidence, its judicial method and its style of reasoning, but also from the very type of cases it chooses to hear. Given that most cases coming before the court come by way of special leave, a High Court has more choice over its type of work than any other court.

This is a court whose judges are not very much interested in the criminal law, in human rights, in practical issues of government, or working models of federation. Far from seeing itself as the apex of the third arm of government, the court seems to see itself primarily as a board of examiners of the grammar and rhetoric of Court of Appeal judgments, occasionally called out to parse, then approve, the Commonwealth's constitutional forays or expanded views of its executive power, as with immigration and national security matters.

Some of the judges, indeed, delight in their monasticism, impracticality, and remoteness from the real world. I expect that Kiefel will not. That's why, over time, she might make more difference than judges apart from Kirby.

If she simply disappears into the engine room, never to be sighted again, the court will become more grey, more boring and more irrelevant. Hardly the best place for high-achieving women of substance.