It’s one of the key government decisions, but you may have missed it

Last week, Anthony Albanese and Attorney-General Mark Dreyfus announced one of the most important decisions any government ever makes: the appointment of Australia’s next chief justice. Upon the retirement of the incumbent Susan Kiefel in October, Stephen Gageler will become the 14th leader of the High Court. They also announced the appointment of the NSW judge Robert Beech-Jones to the vacancy created by Kiefel’s departure.

The announcement attracted little notice. The national broadcaster regarded the story as of so little importance that it ranked fourth on its radio news bulletin, which led with the retirement of Ita Buttrose. (I guess if you live in ABC-land, the retirement of your chair is a lot more important than the appointment of the head of one of the three branches of government.)

The existing High Court: (from left) Jacqueline Gleeson,  James Edelman, Stephen Gageler, Chief Justice Susan Kiefel, Michelle Gordon, Simon Steward and Jayne Jagot.

Not that Dreyfus would have minded the modesty of the coverage. Attorneys-general are judged by the quality of their senior judicial appointments. Absence of controversy is a good measure of success. The four so far made under Dreyfus – Gageler, Debbie Mortimer as Chief Justice of the Federal Court, and Jayne Jagot and Beech-Jones to the High Court – have been well received. All satisfied the double test: that the nominee should be respected professionally and should be untainted by controversy.

After Kiefel, Gageler is the longest-serving member of the court. Before that, he was an impeccable solicitor-general. Because he is the oldest Justice, we should not expect any further appointments before he reaches retirement age in 2028. That is longer than usual for the composition of the court to remain unchanged, which gives Gageler time to put his stamp on its jurisprudence.

The appointment of Beech-Jones, following that of Jagot last year, means the High Court is now heavily Sydney-centric; four of its seven members come from the NSW bar or bench. There are two Victorians.

Justice Robert Beech-Jones has been appointed to the High Court.Credit: Oscar Colman

For the first time since 1970 there is no Queenslander. Justice James Edelman, who now lives in Brisbane, is from Perth. Beech-Jones was originally Tasmanian; his appointment continues the tradition of overlooking South Australia, which has never had a High Court judge.

With Gageler’s accession in October, we will see the departure of one of the most remarkable chief justices Australia has had. I have known Kiefel for more than 35 years; as a barrister, I worked with her often. My favourite memory of her involves a case about the Goondiwindi saleyards. (She has retold this anecdote in after-dinner speeches, so I’m not breaching any confidences.)

Cattle auctions at the yards were controlled by the three big pastoral houses, Dalgetys, Primac and Elders. An intrepid local stock agent called Dowling wanted to conduct auctions there too, but they refused him access. He sued them for anticompetitive conduct.

Outgoing High Court Chief Justice Susan Kiefel and her replacement Stephen Gageler.Credit:

I was junior counsel, representing the pastoral companies. The solicitors were from a distinguished but very old-school firm. When I recommended they brief Kiefel as the silk, I was told gently but firmly that putting the case in the hands of a woman QC would not be welcomed by their conservative clients. (This was Brisbane, more than 30 years ago.) I persisted; they relented. The customary pre-trial conference was held in Kiefel’s chambers. The representatives of the three clients, all blokey stock agents from central casting in their moleskins, RMs and check shirts, walked in suspiciously. The discussion proceeded. After about an hour or so, Susan opened her desk drawer, undemonstratively took out a pouch of tobacco and a packet of Tally Ho’s, and proceeded to roll a cigarette. The gesture was lost on no-one. The bushies visibly relaxed. By the end of the conference, she had them eating out of her hand.

We won the case. The judge, the great John Lockhart, wrote a magisterial judgment; Dowling v Dalgetys was for years the leading case on market definition, one of the more complex issues in competition law.

That anecdote reveals something about Kiefel. She is real. There is no place more cloistered than the top floor of the High Court building where the Justices have their chambers; to that rarefied environment, Kiefel brought a refreshing pragmatism and worldly wisdom.

That wisdom no doubt comes from her background, a great Australian story, and certainly the most unorthodox of any High Court judge. Kiefel left school at 14. She became a legal secretary at a barrister’s chambers. Having completed secondary school at night, she qualified for the bar. It cannot have been easy for female barristers in Brisbane in the 1970s. There were very few, but her talent was soon recognised. Eventually, she won her way to Cambridge, where she earned an LLM and won the subject prize for comparative law. After her return to Australia, she became Queensland’s first woman QC and Supreme Court judge. She has obviously been a great role model for women lawyers, as an achiever, not an activist.

Kiefel’s leadership of the court is a study in calm authority. (She is as tough as can be, but I have never heard her raise her voice.) She balanced scholarly assurance with practical appreciation of the need for the court to give clear guidance. She disapproved of the practice of each judge writing separate opinions (“vanity judgments”), often with confusingly different reasoning to the same conclusion. She encouraged, wherever possible, joint judgments. Of course, among seven highly intelligent people with strong opinions, that was not always possible. For instance, the court split 4-3 in the controversial Love decision on Indigenous citizenship; both Kiefel and Gageler were in the minority. Nevertheless, under her leadership, the court spoke with one voice to an uncommonly high degree.

The American jurist Alexander Bickel once described the US Supreme Court as “nine scorpions in a bottle”. There have been times when the High Court has been a little like that. But not on Kiefel’s watch. She may have been a role model for women in the law, but as an exemplar of judicial leadership, Susan Kiefel is a model for Chief Justice Gageler as well.

George Brandis is a former attorney-general of Australia. He also served as Australia’s High Commissioner to the United Kingdom.

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