gain a Masters of Law from Harvard
Law School (and an insight into US
jurisprudence). He returned to practice
as a barrister in Sydney for 20 years
and was made Senior Counsel in
2000. He brings expertise to the
bench in in the areas of constitutional,
administrative, revenue and commercial
law. In 2008, he was appointed to the
position of Solicitor General and ran
several high profile cases including the
government's defence of the `Malaysia
Solution' and the `Plain Packaging'
Reforms. Notably he has no explicit
judicial experience (reflected in his
co-authorship or agreement with the
majority in judgements so far) and is
a black belt in Taekwondo clearly a
Justice not to be messed with.
and attained his legal qualifications
at the Univeristy of Queensland and
later at Oxford (gaining knowledge of
the UK's diverging jurisprudence). He
began practicing as a Barrister in 1978
and was appointed Queen's Counsel
in 1988, eventually becoming Solicitor
General for Queensland. Justice Keane
has substantial judicial experience
having been appointed as a judge in
the Queensland Supreme Court of
Appeal and Chief Justice of the Federal
Court of Australia. According to George
Williams (Constitutional Law Professor
at UNSW), he is one of the country's
leading constitutional lawyers with
a number of published papers on
constitutional matters, remedies and
consumer law. In the past he has been
particularly critical of federal legislation
(describing reading the Taxation Act as
entering a parallel universe) and voiced
strong opposition to the institution of an
Australian Bill of Rights.
The backgrounds and experience of
Justices Gageler and Keane indicate
their clout as legal minds worthy of
sitting on the bench of the HCA. But the
question is; how will their appointment
affect the HCA?
legal landscape
new justices, whilst based on merit and
experience, can be a highly political
decision process with selection usually
favouring `federal interests', considering
of government are the most common
litigants in the HC's original jurisdiction.
It is notable that the new appointments
reflect a shift in political power with the
majority of the judges on the bench now
appointed by the Labor government.
Justice Gageler is politically neutral
whilst Justice Keane is known to be a
`Labour man'. Irrespective Professor
Patrick Keyzer (Bond University
Professor) believes that neither's
work has "betrayed...[a]...hint of
political bias" and should not impact on
judgements delivered. Williams affirms
Keyzer's sentiments, believing that the
new justices' appointments would've
occurred irrespective of the political
party in power.
Though, future appointments to the HC
may be subject to the political pendulum
especially with the high probability of
government changing later this year
(affecting the replacement of Justices
Crennan and Hayne in 2015).
As an associate of Chief Justice
Mason, Justice Gageler observed
what he describes as the "romantic
period...[of] great creativity and
development in the law" for the
High Court. When interviewed, he
has expressed a liberal view to
adjudication, referring to himself
as "conservative" but a "realist" by
acknowledging that judges need to
modernise the law within reason (Rick
Fenely - The Age, 21 August 2012). It
appears that Justice Gageler will not
illustrate overt progressivism but will
update erroneous law or impractical
interpretations of the constitution.
This is possibly symptomatic of his
lack of judicial experience feeling
no compulsion to observe the habitual
`legalism' that graduates from the
lower courts would be accustomed
to. Concurrently, his exposure to US
perspective on Australian law and
adaptation of foreign domestic laws
(though perhaps not as far reaching
as the law of Botswana as per
Justice Kirby).
than that of the current Chief Justice
Robert French who, according to
George Williams has "progressive
views but is a legal traditionalist".
Justice Keane has similarly been
viewed as a conservative judge and is
likely to be a more cohesive force within
the court than his predecessor Justice
Heydon (who, post-Kirby, became the
great dissenter of the HCA - dissenting
in 45% of his total judgements). Justice
Keane is renown for being the fastest
judge to deliver judgement on the
Federal Court and may mark a new era
of efficiency for the HCA arguably
at odds with rumours that he prefers
to write his judgements by hand.
However, in terms of explicit attitudes to
constitutional matters, his approach in
the Federal Court has been seen to be
favourable to `state rights' and so may
see an opportunity for states to extend
their legislative powers.
As Nicola Roxon (former federal
Attorney General) stated, it is hard
to characterise how exactly the new
judges will perform on the bench of
the HCA, however it appears that law
students can breathe a sigh of relief
with a low probability of dissenting
judgements (and readings). Such
certainty is undermined by the
transformation of Justice Heydon from
a conservative majoritarian to the great
dissenter post-Kirby.
the consensus is that the HCA will not
dramatically change its course as a
relatively conservative bench.