Susan Kiefel’s appointment to the High Court in place of the retiring Ian Callinan may not have happened if we were not so close to a Federal election. Notwithstanding that, there are grounds for cautious optimism about her elevation, particularly her stated opposition to much of Philip Ruddock’s new sedition laws.
The selection of new members of Australia’s highest court is important because the appointees occupy an independent office and are beyond political direction. Inevitably they will pronounce on the constitutionality of legislation, often with massive political consequences. The Federal Government appoints them and therefore needs to make careful assessments of their likely views on constitutional questions.
High Court appointee Susan Kiefel
In the 1980s, Ian (‘Tubs’) Callinan led the prosecution of Justice Lionel Murphy and was a senior legal adviser to Queensland’s conservative Bjelke-Petersen Government. With that service and his wide experience as a senior and accomplished barrister, he was virtually assured of being appointed by a Coalition Government to judicial office. On the High Court, Callinan has mostly taken a conservative position as expected, although in earlier years he dissented more often than most of his colleagues. More recently, he has usually formed part of the majority conservative bloc on the court. His most notable dissent was in the Workchoices case last year when he objected strongly to the accretion to Commonwealth power that the majority decision entailed.
With Callinan’s retirement and the remaining six Justices being from NSW or Victoria, the new appointee could not come from either of those States.
The new Judge had to be a Queenslander though. In the 2004 Federal election Labor received a very low 42.9 per cent of the two-party preferred vote in Queensland. If it achieves, say, 51 per cent there this year, it will win a swathe of seats. The Howard Government could not risk offending parochial Queensland, the least urbanised State, by appointing a ‘southerner’ to succeed one of its own.
Kiefel was a safe choice because she has been a Judge for 14 years and has a conservative judicial track record. There has also been much criticism of the lack of female appointments at the higher levels of the judiciary. The Government would be conscious that it is looking shopworn and her Honour’s gender and relative youth (at 53) allow the Government to cast her as fresh and progressive which may help it electorally.
But why is Kiefel a good appointment? The first reason is simple: she is different. She went to a public high school which she left at age 15, did a secretarial course and worked as a secretary. She studied at night to matriculate and obtained her law qualification by correspondence through the Queensland Barristers’ Admission Board, while working full-time.
That’s a very tough way to qualify. It’s extraordinary that with that background, she was a barrister by the age of 21.
Her opportunities as a young female barrister in the 1970s must have been limited, but 12 years later, Kiefel was appointed a Queen’s Counsel, the first woman ever to be appointed to the position in Queensland, and nationally one of the youngest QCs of either gender. For all these reasons, her life experience has been very different to your average Judge.
At the age of 37, Kiefel was appointed by the Hawke Government as a part-time Commissioner of the Human Rights and the Equal Opportunity Commission and the Goss Labor Government appointed her to the Queensland Supreme Court at the young age of 39 in 1993. By that stage, her gender had become a positive. Senior woman lawyers were still very thin on the ground and often such women were appointed Judges quickly, as soon as their seniority was recognised.
It should not be assumed she was a Labor supporter just because she was Labor-appointed but it is interesting that it was the Keating Government that appointed her to the Federal Court in 1994.
However, it’s Kiefel’s extra-judicial interests that suggest she may not be a rigid conservative providing a second reason for optimism.
In the 1980s, she took leave from the Bar and studied law at Cambridge. Her specialty was Comparative Law, the comparison between the ‘adversarial’ British legal system and the European ‘inquisitorial’ system. Her Honour is therefore unlikely to be a knee-jerk, uncritical supporter of the British tradition, which for example, leads many of it supporters to oppose a Bill or Charter of Rights for this country. Kiefel would be quite familiar with the European tradition of legal recognition of human rights, which is now also emerging in Britain as a result of its integration with Europe. Even if Kiefel remains a supporter of the British tradition, she is unlikely to be an uncritical supporter, particularly with her HREOC experience. This alone may make her a more progressive influence on the High Court than Callinan.
Kiefel has also been a part-time member of the Australian Law Reform Commission since 2004 and was the co-author of the Commission’s 2006 report on Attorney-General Philip Ruddock’s controversial new sedition laws. Kiefel showed courage in her strong criticism of the legislation when the Government was likely to be considering her as Callinan’s replacement.
It is not the slightest bit surprising that there was no mention of these sedition recommendations when Ruddock announced her appointment last week. Ruddock would be anxious to avoid any reference to them, given his determination to ignore the much praised report entirely.
Another reason the appointment is positive is that, as a Queenslander, she may be less ‘centralist’ than the current court majority. This may disappoint politicians on both sides of Federal politics, but not those who view the balance as skewed way too far in favour of the Commonwealth.
Conservative governments have got it wrong before when they thought they were appointing a fellow traveller to the High Court. In the 1980s, the Fraser Government elevated another Federal Court Judge, Bill Deane, who proved one of the most liberal-minded Justices in history.
One thing we know about the High Court is that its members value its independent status and governments are often frustrated that appointees quickly forget who appointed them.
We will watch with interest the progress of Susan Kiefel in the years ahead. She has come a long way since completing a secretarial course at Brisbane’s Kangaroo Point Tech, but her most testing journey lies ahead.
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