The mark of a good judge
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French may have felt pressures to side with the asylum seekers on the MV Tampa - but applied the law without fear or favour. (AFP: EPA-Scanpix/Wilhelmsen Group)
The day of the 1969 federal election was famously depicted in the David Williamson play Don's Party. On that day Kim Beazley Senior was opposed for his then safe Labor seat of Fremantle by a 22-year-old Liberal candidate, Robert French, now to be our next Chief Justice.
Thirty-two years later, in 2001, French, by then a Federal Court judge, wrote the leading majority judgement in the appeal which overturned Justice Tony North's decision in the Tampa case. North had ordered the 433 asylum seekers aboard the Norwegian freighter, MV Tampa, to be considered for refugee status within mainland Australia. French's decision, made in a blaze of publicity just before another federal election, would have delighted the Howard Government.
These two facts would not seem to recommend French as a likely Labor-appointed Chief Justice. However, a closer examination of French's career and associations reveal he is a long way from being a Coalition lap-dog.
In the 1969 campaign, one of Beazley Senior's most fervent supporters was his son Kim. Yet, little more than seven years later when Kim Junior became a father, he selected French as his newborn daughter Jessica's godfather. An unlikely but close friendship had obviously developed between the two young men.
What is often forgotten is that in the 1960s and 70s, the Liberal Party still had a significant 'small l' liberal wing, partly composed of people uneasy with the then stridency of Labor's left wing which was strongly committed to socialism - and in control of the ALP in Western Australia. French was one of those 'l'iberals. It is scarcely believable now that a Liberal supporter would be a founding member of the West Australian Aboriginal Legal Service, as was the young Rob French, but things were different then.
In 1986 French was thought a safe Labor choice to be appointed as a Federal Court judge at the young age of 39. At the time, the Hawke Labor government, which had come to power in 1983, had deliberately made several youthful appointments to the Federal Court including Justice Peter Gray who had close links to left-wing trade unions in Victoria. In NSW, Labor had offered a Federal Court judgeship to a young Jeff Shaw who rejected the opportunity because of a desire to enter state politics which he later did, becoming Labor's NSW attorney-general.
The appointment of French at the age of 39 was therefore not remarkable for the period. The Hawke government was appointing young, hopefully sympathetic judges while it had the chance. Perhaps Kim Beazley, by then a federal minister, had some influence on French's elevation. The two men certainly continued to regard themselves as close friends because when Beazley turned 40 in 1988, French and his wife Val hosted a surprise birthday party for the startled Beazley, who was then on his second date with Susie Annus, later his second wife.
On the bench, French came to be regarded as a very able lawyer with wide expertise in the court's increasing jurisdiction. He maintained his interest in Indigenous affairs and it was no surprise and an indication of Labor's continuing confidence in him when he was appointed the inaugural president of the Native Title Tribunal by the Keating government in 1994.
It would be a mistake however to think that the well-connected French has established a reputation as a radical or activist judge. He believes that legislation should be interpreted in a manner consistent with parliamentary intentions. This approach avoids the criticism which political conservatives often voice in the aftermath of what they see as activist decisions by the judiciary.
Read the rest of this article at newmatilda.com, where it was first published on August 1, 2008.
Kirk McKenzie is a Sydney lawyer and president of the Labor Party's North Sydney Branch.
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Comments (18)
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PShaw:
04 Aug 2008 10:59:13am
As with politicians, an honest judge is one who, when he is bought, stays bought.
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Bob:
04 Aug 2008 11:08:20am
Let's go watch some paint dry, it will be exciting after listening to the President of the North Sydney branch of the Labor party. What Mckenzie apparently proposes is this: if we have a parliament full of wackos, and some might say we currently do, then Judges are expected to reflect the mood of the house? Give me a break.
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Que:
04 Aug 2008 11:09:30am
"French may have felt pressures to side with the asylum seekers on the MV Tampa - but applied the law without fear or favour."
This is a lie, no he wouldn't. He would have felt pressure to side with the governemnt.Agree (0) Alert moderator
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PaulB:
04 Aug 2008 4:57:06pm
I am quite proud of our legal system, the selection process & the individuals working as judges, left, centre and right.
On a day when religious thugs masquerading as jurors in Iran confirmed the mass execution of 30 people this coming Sunday, I am grateful for all that our secular democracy provides for us.Agree (0) Alert moderator
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Tank:
04 Aug 2008 11:29:49am
Yawn. Why are we reading the opinion of the president of the North Sydney Branch of ALP on an ABC site? Will the Libs get a right-of reply? How about the Greens?
Good grief, this is just plain rubbish. Is this the best the ABC can come up with when it is searching for discussion points?Agree (0) Alert moderator
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Greg h:
04 Aug 2008 11:38:34am
Parliament sets the laws.
Judges make sure the laws are obeyed, enforced and they are in line with the constitution.
This is what makes a good judge, not someone who is intent on enforcing his personal and radical left wing views on the rest of the society.Agree (0) Alert moderator
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Wagner:
04 Aug 2008 12:45:21pm
Exactly...I mean look what happened to the 200 plus year old concept of "terra nullius" when the last Red-led High Court got their hands on it...
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Jonno:
04 Aug 2008 2:56:08pm
The constitution should always be interpreted as it was meant to be interpreted. The problem of justice is that it does not always do so when there is revenue involved, or a political party. We must decide who turns the screws to calibrate the scales of justice. Public pressure should always be with the majority, not the ruling party on what is just.
For instance : breathelisers must comply with measurement laws.
Speed cameras do not comply.
This is in need of fixing...Agree (0) Alert moderator
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Wagner:
04 Aug 2008 3:26:19pm
yes, I'm sure that issue will be before the High Court in the near future...
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Rod Olsen:
05 Aug 2008 1:01:22am
Actually, under our Legal System inherited from the UK, there are two types of law: Law made by Parliament (ie legislated)and Judge-made Law (ie Common Law).
So Australian judges can, and do, make law - by interpreting past judgements (ie legal precedent).
That said, our system tends to produce less-politicised judges and courts than, for example, the US Supreme Court (as in the judgement that made George W Bush the President in 2000; or the recent decision to make gun control laws unconstitutional based on a dubious interpretation of the Second Amendment of the US Constitution).
Greyollie, Canberra.Agree (0) Alert moderator
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Ozjust:
04 Aug 2008 12:36:40pm
Judges do not give a damn about injustice, which they spread, or the future of our country, which they shape through the judgment according to their whim. French seems to be different.
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Wagner:
04 Aug 2008 12:49:52pm
You know him personally do you?
It is a shame that EVERY other judge in the history of our country has not given a damn about injustice...
I think that perhaps you need to start getting your legal information from sources other than the mass media/Woman's Day.
What you fail to realise is that 99% of judgments made are uninteresting to the media and that it is only the controversial ones which get reported.Agree (0) Alert moderator
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Ozjust:
04 Aug 2008 6:12:03pm
I dont know him personally, but read his lectures and, since he became a candidate, about his achievements and failures. His speech about declarations beats Womans day hands down. I was also concerned who will teach me law when Kirby goes and I am happy.
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Bruce :
04 Aug 2008 1:35:33pm
No one side of politics should be able to choose Judges in an arbitrary manner yet this has been the reality since federation. The High Court is the official interpreter of government intent in all matters of contested legislation. This is a fundamentally important role and I want justice served not ideology!
An alternative means of choosing high court judges might include a list of applicants presented to both houses of parliament and that 2/3rds support of both houses be won in favour of an applicant before an appointment is made!Agree (0) Alert moderator
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Geoff:
04 Aug 2008 1:46:53pm
I can still remember one of the headlines when John Kerr became Governor General.
He was a Balmain boy who still held a boilermakers ticket.
Only time will tell in this case, as it did with Kerr.Agree (0) Alert moderator
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Mike :
04 Aug 2008 2:13:39pm
Are any Judges legal ?
Where are the Patent Letters published ?
Or are they all "acting" ?
Q. When is a Judge not a Judge ?
A. When he knows hes not a Judge
Court of Appeal 2003 published The Australian April 2008
Judge ye not lest ye be JudgedAgree (0) Alert moderator
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whitelephant:
04 Aug 2008 3:55:53pm
'....not someone who is intent on enforcing his personal and radical left wing views on the rest of the society.'
So Greg h-would it be o.k. if the judge forced right wing views on the rest of the society?Agree (0) Alert moderator
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Z:
04 Aug 2008 10:27:39pm
While undoubtedly an appointment of merit, its just a pity that under our system of Government the prime element of "merit" in appointments to the Judiciary, Diplomatic and senior positions within the Public Service is to be a mate of the appointing party of whatever side of politics is making the appointment. This filter of political connection excludes the vast majority of those of at least equal merit who dont happen to have mates in the right places. The NSW government has made an artform of the appointment of the apparatchik.
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