December 19

Judicial appointments and merit

The extraordinary revelation that being a constitutional monarchist actually went against Justice Michael Kirby’s appointment as a High Court judge confirms the sad fact that some republicans are prepared to punish those who have the temerity to honour their Oaths of Allegiance.

According to a report by Michael Pelly in The Australian on 17 December,” Virginia Bell shows game has changed,”  senior Queensland lawyers were “fuming” that Court of Appeal judge Patrick Keane was not appointed because he was against a bill of rights.

He said a key member of the Government's consultation group said Justice Keane had paid dearly for a speech to the National Archives Commission in June. In this he seemed to play down the need for a bill or charter of rights in praising our "small brown bird" of a constitution.”

Apparently the judge’s comments on judges having to "decide between right and right" were not considered “clever” when the Government had already set aside $2.8 million for consultations on human rights, he reports.

He says that of the forty names proposed, a short list of five emerged: Justice Bell, Justice Keane, Justice James Allsop of the NSW Court of Appeal, Justice Carmel McLure of the West Australian Supreme Court and leading NSW silk Bret Walker SC.  

In announcing the appointment of Justice Virginia Bell, her experience in criminal law was stressed as an advantage. This is an unusual background for High Court judges, who usually come from the commercial bar and may often have appeared in leading constitutional law cases.


 Michael Pelly says some legal figures were upset that The Australian had earlier reported a barrister saying Justice Bell was "no High Court intellect". One criticised the Attorney –General’s focus on her criminal law credentials, asking: "Since when has someone been appointed to the High Court because they are strong in one area?

It's meant to be a job for a generalist lawyer." Mr. Pelly interviewed NSW public defender Andrew Haesler SC who countered that Justice Bell had “the intellect for any legal problem”.

"Criminal law can be incredibly complex but she can explain it very simply and clearly," Mr Haesler said. "Explaining a point of law to a jury in a murder trial is much harder than rabbiting on in an endless paragraph about commercial or constitutional law to people with a reading age of 50."

In an earlier report on 16 December, “Court gets a go-getter, ” Mr. Pelly pointed out that Justice  Bell had not endeared herself to the "tabloids". 

The term "tabloids" encompasses more than one meaning. We have assumed the least perjorative.  We take this to be shorthand for those who believe the pendulum has swung too far in  offering leniency to  the criminal and in making excessively difficult the prosecution of offences ( see this column, “The Queen’s Peace”, 21 November , 2008).

This would appear to be a widely held view among the general public.


 He said she did not “endear herself to the tabloids” when she held  that convicted murderer Bassam Hamzy had the right to sue  over allegations he is being wrongly kept in isolation.

Justice Bell also joined in the extraordinary decision to bar the NSW Deputy Senior Crown Prosecutor, Margaret Cunneen, from acting in the retrial of a gang rapist known only as MG.  Ms. Cunneen had earlier been denied silk for no other plausible reason that she had been critical about the way the legal profession had allowed the pendulum referred to above to swing too far towards the accused.

The court found that Ms. Cunneen's public statements about MG's case would lead people to "conclude that she may not discharge her obligations with appropriate fairness and detachment" and that "justice would not be seen to be done".

I find this decision difficult to justify. The prosecutor is neither a judge nor a member of the jury. I suspect that the public would assume that prosecutors would pursue cases robustly.

Michael Pelly says she also received “poor reviews” when she joined in the decision  that ruled that  the crimes of notorious Sydney gang rapist Bilal Skaf and his cohorts were found not "in the worst-case category" and their combined sentences were cut by more than 30 years. One crime had involved 14 males brutally attacking and degrading their teenage victim.  

 Jason Morrison observed on the 2GB Alan Jones programme on 18 December that he would sometimes like to call out in court to ask the judges just what they consider would fall into this elusive “worst-case category.” 

In any event, the point is surely that merit should be the criterion for appointment, and the opinion a judge has about proposals for constitutional change is more than irrelevant, it is an improper consideration.  


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