High, mighty: Mabo and the law as an ass

The elevation of Jayne Jagot to the High Court is historic – not simply because it will mean a majority of ­female judges for the first time.

Incoming High Court judge Jayne Jagot in her Sydney chambers on Thursday. Picture: John Feder

The elevation of Jayne Jagot to the High Court represents a ­historic moment for the court – and not simply because her elevation will mean a majority of ­female judges for the first time in its history.

It also marks the appointment of a rare judge willing to publicly reveal the influences that have shaped her approach to the law.

Years of dealing in native title cases prompted the discovery that nothing she had been taught as a teenager at Baulkham Hills High School, in Sydney’s northwest, in the late 1970s and early 1980s equipped her to deal with the ­injustices faced by Indigenous Australians.

In a 2017 speech to NSW young lawyers Justice Jagot quoted approvingly from Charles Dickens’ Oliver Twist: “When told that the law assumed that his wife was under his direction, Mr Bumble’s response was that ‘if the law supposes that ... the law is a ass – a idiot’.

“The law, it seems fair to say, generally lags behind society on social issues,” she observed.

Justice Jagot, currently a Federal Court judge, will become the seventh woman appointed to the High Court, joining Susan Kiefel, Michelle Gordon and Jacqueline Gleeson, and replacing justice ­Patrick Keane on October 17. The 57-year-old will also ­become one of only two Labor ­appointments on the current bench (Justice Stephen Gageler was appointed by the Gillard government in 2012) but her appointment has been applauded in most quarters of the legal profession.

 

Announcing the appointment, Attorney-General Mark Dreyfus described Justice Jagot as an outstanding lawyer and an eminent judge whose “legal acumen and sterling reputation” had been noted throughout the government’s extensive consultations in the lead-up to the decision.

Mr Dreyfus had been lobbied by various state ­attorneys-­general, bar associations and political colleagues, ­particularly those from South Australia, which has not supplied any of the High Court’s 56 judges since the passage of the Judiciary Act in 1903.

Asked about the omission at a press conference, Mr Dreyfus said the appointment had been made on merit but acknowledged “I have heard the complaint from all of my colleagues from South Australia.’’

A graduate of Sydney Law School, Justice Jagot was a ­partner at law firm Mallesons, Stephen Jaques (now King & Wood Mallesons) before ­becoming a barrister and later a judge in the NSW Land and ­Environment Court and deputy president of the Copyright Tribunal of Australia. Justice Jagot is married to former NSW Supreme Court judge and royal commissioner Peter McClellan.

UNSW constitutional law ­professor George Williams described Justice Jagot as “an impeccable appointment, a fine judge with well-developed skills.”

“She’s also very consistent with the sorts of people who have been appointed to the High Court in the past from both sides of politics, so you wouldn’t see it as a political appointment in any way,” Professor Williams said.

“I don’t think we will know for some years until we see a pattern of decisions that reveal her judicial methodology.”

However Justice Jagot is not regarded as a black-letter judge.

Some lawyers suggested her approach to questions of legal ­interpretation may be discerned from her views on the Mabo case, which overturned the established legal doctrine of terra nullius (nobody’s land) and in which, in her words, “the value of compassion played a central role.”

Justice Jagot quoted Justice Gerard Brennan’s approach that although “terra nullius” had been repeatedly applied in the past, “if this was the law it was unjust and had to be questioned”.

Outlining her philosophy of the law, she observed: “The procedural framework within which the law resolves dispute … involves a system of knowable but infinitely adaptable rules and principles.”

Justice Jagot acknowledged her views had developed over time after several years of dealing with native title matters.

She describes herself “as a product of the NSW state school system of the 1970s and 1980s”. She said Australian history consisted of a “turgid recitation of so-called ‘discovery’, occupation, exploration, WWI, Gallipoli, and conscription debate. I was taught nothing about Aboriginal history or culture … Did I know then that Aboriginal people were used as the equivalent of serfs in the pastoral industry? I don’t think so.

“How can we think the rule of law is a good thing when it can entrench such injustice?”

The next appointment to the High Court is expected to occur late next year prior to the retirement of Chief Justice Susan ­Kiefel in January 2024 when she turns 70.