Retirement and Appointment of High Court Justices

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2015 will see the retirement of two long-serving High Court justices; Justice Kenneth Hayne and Justice Susan Crennan.

Previously, justices could be appointed to serve on the bench for life, however since an amendment to the Constitution in 1977, justices of the High Court have been required to retire upon turning 70 years of age.

Both Hayne and Crennan will reach this milestone next year.

This means that the time will be ripe to choose two new Justices to sit on the bench, which comprises seven of the nation’s most accomplished legal minds.

Both Hayne and Crennan fit this pedigree well – Justice Hayne was appointed to the High Court in 1997 after serving on the Victorian Court of Appeal and Victorian Supreme Court.

He had previously worked as a barrister, earning the coveted title of Queen’s Counsel in 1984 and specialising in commercial, constitutional and civil law.

Justice Crennan has also led an extremely fulfilling career; having being appointed to the High Court in 2005 as its second female Justice.

She had previously worked in the Federal Court and held a number of notable titles, including President of the Australian Bar Association, Chairman of the Victorian Bar Council and Commissioner for Human Rights.

Prior to her appointment, she had also worked as a barrister since 1979, becoming a Queen’s Counsel in 1989.

It’s no doubt that the departure of these esteemed Justices will leave big shoes to fill.

The Governor-General in Council has the official role of making appointments to the High Court; however they are largely advised by the Federal Government of the day.

This has meant that, despite constitutional safeguards, the Federal Government is, to some extent, able to influence judicial outcomes by making recommendations for appointments of Justices who support the government’s ideals and sentiments.

This is particularly desirable for the government because, as the highest court in the country, the High Court has the clout to make binding decisions on matters of law which are unable to be appealed or amended.

High Court decisions, like the famous Mabo case, can therefore have a considerable impact on the political and legal landscape for many years or even decades to come.

One legal commentator has suggested that the next appointees will therefore be conservatives who are expected to support the Abbott government’s policies, and who they will expect to rule favourably on impending challenges to Federal power.

When deciding whom to appoint, the Government and Governor-General can consider a number of factors, such as the candidate’s skills and abilities, their gender, and even their home state.

Being a High Court Justice is certainly not for the faint-hearted – the High Court decides on some of the most difficult legal controversies of the day, which have already come before State and Territory Supreme Courts.

It also hears cases about State and Commonwealth power, and matters of Constitutional law.

It is a job that therefore requires a formidable intellect and a thorough understanding of laws and legal principles.

Justices are expected to work lengthy hours and must spend a considerable amount of time writing judgments which become binding law.

Appointees are also generally expected to take a considerable pay cut – although High Court Justices earn somewhere in the vicinity of $500,000 per year, this is often far less than they could make as highly accomplished barristers – although this is somewhat mitigated by the receipt of a very comfortable retirement pension upon a Justice’s departure.

Despite these lofty expectations and financial setbacks, it is a job that is no doubt a great privilege and honour.

Through their binding decisions, High Court Justices have the unique ability to shape both the political and legal fields and often exercise their powers to limit the application of governmental policies which may cause harm or disadvantage to the general public.

As stated succinctly by the Honourable Justice Susan Kiefel, a current serving Justice of the High Court,

“Judges also have the advantage of a belief in the social importance of the work they are doing and the social recognition of its importance.”

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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