High Court appointments … Endorsements and disappointments … What now for the Last Chance Saloon? … Justices Simon Steward and Jacqueline Gleeson … Background to selections … Politics and the process … Where’s the excellence? … Knock on Wood … Beach beached … Associate of judges, Ginger Snatch, reports 

AT least Smiler Gleeson’s genes will linger on at the High Court. 

For reasons never entirely clear it was deemed appropriate that a woman from NSW replace Dinger Bell and a bloke from Victoria replace Stinging Nettle. 

Since when did the appointment process for the Saloon have such a rigid, option-limiting template?  

Maybe this is why there has been an underwhelming response on the Street of Tongues to Wednesday’s (Oct. 28) appointments. 

The only one waxing lyrical was The Christian Porter, the man who made the phone calls: 

“Outstanding judges … outstanding barristers … outstanding members of the legal and broader Australian communities … Both have impeccable records … Justice Steward has a stellar career … Justice Gleeson will be a major asset for the High Court.”  

Steward was a Brandis era appointment to the Federal Court although he took up the job after Porter became AG. Soapy filled-in for The Christian at Simon’s swearing-in on February 1, 2018, and made the traditional buttery effusions: 

“Your colleagues describe you as a man of discipline and routine with a schedule that is rarely interrupted except by the delivery of antique furniture from a Melbourne auction house. Your chambers, I know, are liberally furnished with antiques, works and objects of art of the finest taste. Your Honour is known for your strong sense of integrity and duty of service to the legal profession.”

We know that Steward is a tax guru, having written his masters thesis on the Constitutional Limitation of Tax Powers. He smoked cigars in honour of Winston Churchill at the annual chambers Christmas party and while he was a senior associate at Mallesons his nickname was “Your Honour”. 

The big law shop was raided by the AFP one Saturday morning at 4am with the wallopers looking for documents relating to one of Steward’s tax clients. The most exciting part of the story, as told at his swearing-in, was the lawyers had to send out for food from McDonald’s. 

Transfixing stuff. 

Steward was heavily backed for the High Court by sections of Vic’s Bar ‘n’ Grill. Leading the charge was one of the local movers-and-shakers, Stuart Wood QC, who is also a leading light in the flat-earth legal outfit, the Samuel Griffith Society, dedicated to fighting the evils of “judicial activism”. Steward himself has delivered worthy papers at Griffith jamborees. 

Wood was acknowledged several times in the 2018 federal court ceremony, with Steward saying: 

“Friendship and collegiality are essential attributes of the life of a barrister. In my chambers, I had the good fortune of finding many wonderful friends. These include S.J. Wood QC, who has done so much for our bar …” 

Wood’s website is replete with numerous videos from the Institute of Public Affairs and he’s well plugged-in to the inner ranks of the “Liberal” Party. Who knows? – maybe even the views of IPA sponsor Gina Rinohart were sought on the appointments. 

The lobbying from Melbourne was such that there was barely a cabinet minister from Victoria whose attention in the past six months had not been drawn to Steward. The parochialism and tribalism among Yarraside political, corporate and bar ‘n’ grill big-wigs should not be underestimated. 

Steward is also close to Justice Michelle Gordon, who was generously acknowledged in his February 2018 speech: 

“Particular mention should also be made of Justice Gordon. I had the great fortune to have been led by her honour in many difficult cases in the years leading up to her honour’s appointment to this court. 

She was a magnificent mentor when we were both at the bar and her honour’s example led me to form a belief that all lawyers upon their admission are impressed with an inchoate liability to do service, which crystallises at some point and then, in some way, must be discharged.” 

This is interesting, because Gordon was in the majority in the defining culture war case of Love and Thoms v The Commonwealth, in which Benito Dutton’s attempt to deport Aboriginal Australians as aliens was rejected. The Financial Review reports that cabinet could not agree last Wednesday (Oct. 21) on who should replace the Stinger and had to revisit the appointment on Monday (Oct. 26).  

Why we’ve ended up with a tax specialist on a court that craves the skill of generalists is not easily understood. Most of the tax stuff that occasionally winds-up on for final appeal is a matter of statutory interpretation. 

Maybe, Justice Steward will turn out to be “a squishy” – a term in US jurisprudence for judges who change allegiance after their appointment.  

And what of Jackie Gleeson? – the judge, not Jackie Gleason the American TV funny man. 

Here we find the palsied paw of John Howard in setting people on the right path about the suitability of Smiler’s daughter. 

Howard and Murray Gleeson go way back, starting at university where they were only a year apart at law school and later as articled clerks. 

Later, Howard kept hearing that Gleeson was “the new Barwick”. As federal treasurer he called on Gleeson to redraft parts of the Tax Act in order to “strike down blatant, artificial or contrived arrangements but not cast unnecessary inhibitions on normal commercial transactions …” 

It was inevitable that Howard would appoint Gleeson as CJ of the High & Mighty after Gerard Brennan retired. Now, according to our contacts, he was getting into the right ears about Jackie. 

As a Federal Court judge Gleeson has not left a bundle of memorable or important judgments in her name, nor was she widely considered among the top-deck of lawyers during her career as a solicitor and at the bar. 

In November 2018, there appeared a strange footnote from her honour in a judgment in which she, Justice Duncan Kerr, and Justice Kathleen Farrell were all involved. It said: 

“Kathleen and Duncan, it would be more obiter to go on to the question of offsetting claims arising after the date of the application. My view is that we should not be canvassing the issue where there is no utility (especially where the appeal was not particularly well argued).” 

It was hurriedly scrubbed from the court’s website. 

More recently, she awarded whopping defamation damages totalling $875,000 in a case brought by National Party MP Anne Webster, her husband Philip and their charity Zoe Support Australia, against a conspiracy theorist’s crazed Facebook posts. 

Lawyers, whose identities are under wraps, think that Jacqueline may not be the sort of conservative foot-soldier the government assumes. One told us she’s “just to the left of a doctor’s wife”. 

Judging by the extramural commentary that has reached your reporter, neither appointment will do much to enhance the High Court’s “blaze of glory”. 

It’s not as though the government didn’t have plenty of options. We collected suggested contenders from across the spectrum. 

Justinian’s columnist Procrustes: 

From a silk in Darwin:

From Anon:

Julian Burnside QC: 

The extent of the political manoeuvring, back-scratching, nose-tapping involved in sussing out the lawyer/judge with the right credentials, who fits the government’s view of the world, and is not expected to “disappoint” – should never be underestimated. 

It’s more about politics than legal exceptionalism, and while Australia doesn’t have to endure the US selection ordeal, it is nonetheless still politics, politics, politics all the way.