The Rudd government has at last begun the task of wresting the High Court back from the conservatives who have dominated the bench for the last decade.

The new Chief Justice Robert French is a small “l” liberal and a judge who rightly sees his role as being more than simply enforcing law even if the result is injustice. In other words, French might make the rabid anti-judicial activists led by The Oz’s Janet Albrechtsen seethe with rage (oh how delightful!)

In fact, in a speech delivered in Perth earlier this year, Justice French ripped into those who tar liberal judges with the tag “judicial activists”.
It is a fiction, he said, as he described the “almost meaningless rubric of ‘judicial activism'”.

The Howard government hated judicial bleeding heart liberals like Anthony Mason, Gerard Brennan, Bill Deane, Ron Wilson, John Toohey and others who made Australia’s highest court one of the leaders in the world in terms of commitment to ensuring the law was a living, breathing creature that moved with the times. So Howard appointed one conservative after another, with only Michael Kirby consistently holding the torch for liberal values.

Enter Robert French. French’s most recent ruling that caught the eye was his decision, along with Justices Catherine Branson and Margaret Stone, to overturn aspects of the Iemma government’s regulations designed to stop protestors handing out condoms and other materials to World Youth Day pilgrims.

Justice French’ s approach to the case, Evans v New South Wales, was decidedly pro the primacy of human rights. He, and his fellow judges, upheld the right to freedom of speech and suggested that the only way governments could legitimately curtail it was to to use express and clear language that they intended to do so.

Justice French is also a big fan of native title and the High Court’s Mabo decision in 1992. He was appointed by the Keating government in 1994 to chair the Native Title Tribunal.

And no doubt Justice French would have been pleased to note the High Court’s recognition yesterday that the Rudd government’s National Apology to the Stolen Generation was a relevant matter in its decision to grant exclusive water access to Aboriginal people in the NT.

French clearly believes that fighting for equality is not a political fad. When the Commissioner of Taxation argued that a group dedicated to lobbying for a better deal for women in the legal profession should not be entitled to be considered a charity and therefore donations to it were not tax deductible, French took the side of the women lawyers. In a 165-page judgement delivered on June 27 this year, French said of the Victorian Women Lawyers Association that the advancement of women in the legal profession and improving access of legal services to women could not be considered a political matter, but rather was one concerning fundamental human rights.

French is also a progressive when it comes to the issue of greater media access to the courts. He spoke of “the need to consider the desirability of a more proactive approach by the courts to providing electronic access, eg through the internet, to records of proceedings as well as judgments and the treatment of television and radio broadcasting as elements of larger access strategies.”

Oh, and the new Chief Justice of Australia appears to be a fan of Homer Simpson. He titled a technical dry speech he delivered last year — “Declarations — Homer Simpson’s remedy — Is there anything they cannot do?”.

The Rudd government will get other chances to alter the hue of the High Court. Next year Justice Michael Kirby retires and if Mr Rudd replaces him with someone of similar political outlook then we can assume that the reshaping of the High Court is more than an exercise in window dressing.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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