The Chief Justice of the High Court only commands one out of seven votes, but don’t let that fool you: Robert French is a man who gets his own way.
Since his 2008 appointment, the charismatic West Australian has demonstrated a freakish ability to be on the winning side of the argument. He has dissented in only two out of 117 cases — that is, less than 2% of the time. He’s also stood out as a consensus maker: half the court’s decisions in 2010 were unanimous — the second year in a row he achieved an all-time record. And he’s not been afraid of taking on prime ministers and premiers when they muscle in on his court’s turf.
“French has had a bigger impact than expected — and a positive one,” constitutional law expert George Williams told The Power Index.
“There’s been a greater willingness to deal with constitutional questions — foundational questions about our democracy — and even a willingness to strike down laws whereas previously the court might have avoided doing that.”
French & Co. sent shockwaves through Canberra in August 2011 by declaring invalid the federal government’s proposed asylum seeker swap deal with Malaysia. The very future of offshore processing for refugees is now in doubt.
Prime Minister Julia Gillard slammed the decision as a victory for people smugglers and singled out French for inconsistency given he approved the Howard government’s decision to send refugees to Nauru in 2001. (Gillard’s accusation, it should be noted, has received little support in the legal community).
French’s court has also handed down several other significant — and contentious — decisions. It killed off the Australian Military Court, overturned the law requiring new voters to be on the roll by 8pm on the day the electoral writs are issued, and threw out tough anti-bikie laws in NSW and South Australia.
Greg Barns, president of the Australian Lawyers Alliance, says French has “reshaped the court from its conservatism of recent years. It’s been more liberal in its approach.”
Greg Craven, a former Western Australia law professor, says this shouldn’t come as a surprise. He describes French, whom he counts as a friend, as a “19th-century liberal”.
“He is not intellectually apolitical but he is party apolitical,” he said.
But it hasn’t always been so. French was appointed to the bench by then-prime minister Kevin Rudd, but was a committed Liberal Party activist in his university days. He even ran against Labor legend Kim Beazley snr in the seat of Fremantle at the 1969 election. Despite being an innovative campaigner — he took a band on the hustings with him to support his slogan “pop politics in a swinging seat” — he was trounced at the polls by two votes to one.
French is a passionate republican, federalist and Aboriginal rights supporter. He helped found the WA Aboriginal Legal Service in the 1970s and was the first president of the National Native Title Tribunal. He has advocated for treaty between indigenous and non-indigenous Australians and made a point of acknowledging the traditional owners on his first day as chief justice.