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New hurdle for High Court: independence

New hurdle for High Court: independence

IT BEING AN age where judicial appointment processes and appointees are subjected to more and more scrutiny, the appointment of Susan Crennan to the High Court is an even greater achievement,…

IT BEING AN age where judicial appointment processes and appointees are subjected to more and more scrutiny, the appointment of Susan Crennan to the High Court is an even greater achievement, the president of the Law Council of Australia said last week.

Speaking at a special sitting of the High Court of Australia to welcome Justice Crennan to the Court, Law Council president John North said the new role would demand patience and tolerance.

“Modern times, as Charlie Chaplin once pointed out to a different generation, breed modern problems. The problems of today will require all of the confidence and tolerance that the Australian people, and this Court, can bring to bear on them,” North said.

As only the second women to take this role in the Court’s history, Justice Crennan “is about to embark on one of the most challenging roles that the Australian nation can provide”, said North. “While there have been many fractious times in the recorded history of this indescribably aged continent — and many worse times — there can be no doubt that the Australia of today faces a character test of the kind many Australians have not had to confront before.”

The issue of judicial independence is a key one in the current climate, North suggested. He said that Justice Crennan will be conscious of the fact that, “when you lay aside your pen, or possibly your mouse, after having completed a judgment, a die will have been cast whose stamp will endure for a long time”.

The independence of a High Court justice is different from that of other Australian judicial officers, argued North, because it is “more complete”. Justice Crennan will be invited to assess the actions of the executive which, “as the Chief Justice noted recently at the Commonwealth Lawyers Conference, ‘both responds to, and exerts, political pressure’”, said North.

The Chief Justice has also identified legal practitioners as being among the judiciary’s natural allies in the aim to maintain and explain the importance of an independent judiciary. Lawyers and the profession are in a position to explain “to the public, and to those in the political branches of government, why they need, benefit from, and have a right to an independent judiciary”, North said.

The Chief Justice also maintained that “an independent judiciary is indispensable in a free society living under the rule of law”, said North.

Crennan has already publicly recognised the need for judicial independence, North acknowledged in his speech. On first attaining high judicial office, she said “the law and the courts have not been free from widespread general attacks upon institutions of authority, despite the absolute necessity of promoting their authority and independence in the maintenance of a civil society”.

He said that Justice Crennan would always have the support of the legal profession in seeking this independence. “Whether it is a client who regards his home as his castle, a client convicted of a serious criminal offence, or possibly not, a powerful commercial entity with much at stake, or a government defending itself against an aggrieved citizen, they will come before the court with lawyers as their representatives.”

During Australia’s history, its indigenous people have “borne the indignities of dispossession”, said North, “a matter recognised by this Court in Mabo and other cases”. As well, “later arrivals have borne together the burdens of modern nation-building, federation, two world wars, extraordinary technological advancement and the unexpected by-products of globalisation”, North said.

But Justice Crennan comes to the Court with a track record of achievement in life which suggests the ability to cope readily with change, so such a history should not faze her, said North.

“When speaking on the occasion of your welcome to the Federal Court in early 2004, Bob Gotterson QC, a former president of the Law Council, remarked also of your prodigious capacity for work and your deserved reputation for tolerance, fair mindedness and tact, lightened at appropriate times with a keen sense of humour.”

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