The Rudd Government announced last week that Justice French of the Federal Court would take over as Chief Justice of the High Court of Australia when the current Chief Justice, Justice Gleeson, retires at the end of this month.
The appointment of Justice French suggests that the Rudd Government is keen to avoid accusations of stacking the High Court with judges who have any particular ideological leaning. Justice French has demonstrated during his time on the Federal Court bench that he favours fairly uncontroversial interpretations of the law and is generally viewed by all as a fair-minded and objective judge.
Although the Chief Justice represents just one among seven voices on the High Court bench, a Chief Justice can have persuasive authority to stamp High Court decisions with their own particular brand.
For example, Chief Justice Mason’s Court from 1987-1995 is remembered as a time when the High Court took a more proactive role in entrenching constitutional and common law rights and freedoms, and interpreting legislation in a manner which gave effect to these underlying rights.
Although a number of judges who were sympathetic to these kinds of ideas sat on the bench during this period, Chief Justice Mason’s influence cannot be underestimated.
Justice French has had an interesting and varied history. Born and educated in Western Australia, Justice French has been a Federal Court judge since 1986. He also currently serves in a part-time capacity on the Australian Law Reform Commission. The Australian Law Reform Commission is on the cutting edge of progressive law reform in Australia, and Justice French’s role on this body should give us some peace of mind that he is cognisant of issues relating to law and justice.
It is also clear that Justice French does not buy into the tired dichotomy of black letter law and judicial activism advanced by some conservative commentators. In an address that he gave to a constitutional law forum earlier this year, he dismissed accusations of judicial activism as lacking in substance. According to Justice French, the role of the Court is to interpret the law and no interpretative exercise can be entirely objective. Justice French’s appointment should herald a new era for the High Court after the tired and staid Gleeson years.