The Mark of a Good Judge


The day of the 1969 federal election was famously depicted in the David Williamson play Don’s Party. On that day Kim Beazley Senior was opposed for his then safe Labor seat of Fremantle by a 22-year-old Liberal candidate, Robert French, now to be our next Chief Justice.

Thirty-two years later, in 2001, French, by then a Federal Court judge, wrote the leading majority judgment in the appeal which overturned Justice Tony North’s decision in the Tampa case. North had ordered the 433 asylum seekers aboard the Norwegian freighter, MV Tampa, to be considered for refugee status within mainland Australia. French’s decision, made in a blaze of publicity just before another federal election, would have delighted the Howard Government. 

These two facts would not seem to recommend French as a likely Labor-appointed Chief Justice. However, a closer examination of French’s career and associations reveal he is a long way from being a Coalition lap-dog.

In the 1969 campaign, one of Beazley Senior’s most fervent supporters was his son Kim. Yet, little more than seven years later when Kim Junior became a father, he selected French as his newborn daughter Jessica’s godfather. An unlikely but close friendship had obviously developed between the two young men.

What is often forgotten is that in the 1960s and 70s, the Liberal Party still had a significant ‘small l’ liberal wing, partly composed of people uneasy with the then stridency of Labor’s left wing which was strongly committed to socialism — and in control of the ALP in Western Australia. French was one of those ‘l’iberals. It is scarcely believable now that a Liberal supporter would be a founding member of the West Australian Aboriginal Legal Service, as was the young Rob French, but things were different then.

In 1986 French was thought a safe Labor choice to be appointed as a Federal Court judge at the young age of 39. At the time, the Hawke Labor government, which had come to power in 1983, had deliberately made several youthful appointments to the Federal Court including Justice Peter Gray who had close links to left-wing trade unions in Victoria. In NSW, Labor had offered a Federal Court judgeship to a young Jeff Shaw who rejected the opportunity because of a desire to enter State politics which he later did, becoming Labor’s NSW Attorney General.

The appointment of French at the age of 39 was therefore not remarkable for the period. The Hawke government was appointing young, hopefully sympathetic judges while it had the chance. Perhaps Kim Beazley, by then a Federal Minister, had some influence on French’s elevation. The two men certainly continued to regard themselves as close friends because when Beazley turned 40 in 1988, French and his wife Val hosted a surprise birthday party for the startled Beazley, who was then on his second date with Susie Annus, later his second wife.

On the bench, French came to be regarded as a very able lawyer with wide expertise in the Court’s increasing jurisdiction. He maintained his interest in Indigenous affairs and it was no surprise and an indication of Labor’s continuing confidence in him when he was appointed the inaugural President of the Native Title Tribunal by the Keating government in 1994.

It would be a mistake however to think that the well-connected French has established a reputation as a radical or activist Judge. He believes that legislation should be interpreted in a manner consistent with parliamentary intentions. This approach avoids the criticism which political conservatives often voice in the aftermath of what they see as activist decisions by the judiciary.

A key test of Justice French’s attitude to politically sensitive matters was his judgment in the Tampa case. Justice North had granted a writ of habeas corpus, an ancient remedy used to test the legality of non-judicial detention. He concluded that the Tampa asylum seekers were effectively detained beyond the Parliament’s powers to do so and ordered they be released on the Australian mainland.

The facts were that the Tampa had rescued the alleged refugees from their sinking craft and then entered Australian waters near Christmas Island and declined to leave. The Howard government ordered SAS troops to board the ship, allegedly to secure it and to provide medical and other assistance to the "rescuees".

On appeal French analysed the facts of the matter and concluded that the Howard government had no role in detaining the asylum seekers:

"In my opinion, however, the actions of the Commonwealth were properly incidental to preventing the rescuees from landing in Australian territory where they had no right to go. Their inability to go elsewhere derived from circumstances which did not come from any action on the part of the Commonwealth. The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention."

At the time, some saw French’s decision as out of character, but on reading his judgment it is not easy to disagree with the analysis he applied.

Interestingly at the end of his judgment, he also compliments the lawyers who had brought the case on behalf of the asylum seekers:

"The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation, they have served the rule of law and so the whole community."

Later, after the furore surrounding the case had blown over, French and Federal Court Chief Justice Black who dissented in the case, then combined to refuse the Howard government’s nasty application that the applicants, including the Victorian Council for Civil Liberties and a pro-bono lawyer Eric Vadarlis, should pay the Goverment’s legal costs of the proceedings, which would have been very substantial.

French applied the law without fear or favour. He may have felt pressures, as a person of liberal views, to side with the asylum seekers and in doing so, make a decision which would assist his friend the Leader of the Opposition. It would have been easy but he didn’t do it. That is the mark of a good judge.

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