Courts ‘vulnerable to eroded impartiality’, says High Court Chief Justice Stephen Gageler

High Court Chief Justice Stephen Gageler has raised concerns over the ‘erosion’ of impartiality in overseas courts, championing the preservation of total independence in Australia.

New High Court Chief Justice Stephen Gageler. Picture: Jane Dempster

High Court Chief Justice Stephen Gageler has raised concerns over the “erosion” of impartiality threatening overseas legal jurisdictions, and flagged the impact that “external assault” can have on a judiciary, as the new leader of the country’s top court champions the preservation of independence in the Australian justice system.

Chief Justice Gageler was sworn in as the 14th leader of Australia’s highest court on Monday, and was honoured by various members of the legal fraternity, including Solicitor-General Stephen Donaghue KC and Australian Bar Association president Peter Dunning KC, as a modest, even-tempered and courageous practitioner.

He also became the first leader of the High Court to make a formal acknowledgment of Indigenous Australians during his swearing-in speech, saying: “I acknowledge the Ngunnawal people, and the Ngambri people who hold deep and abiding ties to this part of Australia.

“This being a ceremonial sitting … of a court having nationwide jurisdiction, I also acknowledge traditional owners and custodians of lands in all parts of the continent of Australia, of Tasmania, of the Torres Strait Islands, and of other coastal islands.”

Chief Justice Gageler recognised the “emergent challenges” facing courts across the world, pulling specific focus to the ­potential for the breakdown of impartiality and independence.

“Recent events across a range of comparable jurisdictions have underscored the criticality to democratic order and individual liberty of the existence of the ­judicial branch of government,” he said.

“That is, trusted by other branches of government and by the people to be at once competent, impartial and independent.

“The same global events have demonstrated that those qualities are susceptible to erosion from within the judicial branch, just as they can be vulnerable to external assault.”

Chief Justice Gageler has previously flagged the partisan ­nature of the US Supreme Court as a cause for concern, after the right to an abortion was abolished in the overturning of Roe v Wade.

In a paper he penned last year on judicial legitimacy, Chief Justice Gageler referenced comments from President Joe Biden and former president Donald Trump in the wake of the decision. While Mr Biden said the ­decision was a “tragic error”, Mr Trump claimed credit for it.

“Were those reactions attacks on judicial independence? Or were they manifestations of an erosion of judicial legitimacy ­resulting from a realistic perception that a partisan process of ­judicial appointment has led to a partisan judiciary?” Chief Justice Gageler pondered.

“Though it pains me to say it, I have difficulty escaping the conclusion that is was the latter.”

Justice Robert Beech-Jones was also sworn into the High Court on Monday, after leaving his post at the NSW Supreme Court, and was praised for his ­“integrity, humanity and commitment to the law”.

“Your Honour’s colleagues at the Supreme Court have spoken of how much you’ve contributed to the camaraderie of the workplace, and how much you’ll be missed,” Law Council of Australia president-elect Greg McIntyre SC said.

“I’m sure their loss will be the gain of all those who work with you here in the highest court of the land.”