Our first female High Court chief justice is first class

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So the High Court finally has its first woman chief justice. Mainstream media and ministers' PR spinsters have seized upon this as a remarkable achievement for the legal profession or political incumbent or both, and as 'a fair go' for the empowered woman of 2016.

Susan KiefelSusan Kiefel's attainment of her highest goal should be recognised as no such lesser win. It is a right and proper recognition of the suitability of a solidly trained and experienced lawyer. It is also the product of this individual human being's utterly true commitment to the law and its customs, protocols and conventions.

The chief justice of the High Court represents the greatest achievement of the Common Law: the creation of the rule of law, and the stability of our representative democracy. She is even more important to this solidity than any prime minister, governor-general or populist hero. She represents the rule of reason and precedent and hard won wisdom and sensibility.

This 'rule' of law is commonly misunderstood as akin to a regime of implacable 'law and order' which provides an assurance that malfeasants will suffer apprehension and punishment for their lack of respect for authority. The rule of law is not the rule of violence or suppression. If we cannot disturb the peace in myriad ways a society will not grow and adapt and survive sometimes radical change.

The rule of law is a once-radical principle that no power can never be absolute, that all who have it must account for the use of state power, and that however imperfect there are checks and balances.

In a western representative democracy the three-wheel interlocking of law-making, law interpretation and application, and the execution or management of governance means each may restrain, inhibit or call each of the others to account.

It has been said that the point of democracy is actually to stop everybody talking too much. Moderation is required in all things, and the role of an independent judiciary and legal profession is tremendously important in holding back the others' excesses.

The people may desire, in uncertain times, a 'strong' leader to take care of our interests and to protect us from the achievement of unwise individual aims that endanger the common good. Human beings are of such a nature that 'It behoves men and women to sin'. Nobody willingly shares power, and none likes to be reminded that what is best for the powerful is not necessarily best for the country.

 

"She has a first class brain and self possession as well as a judicial vocation. These are facts that patronising remarks on her studying part time as a 'legal secretary', and on her marital and maternal status, can't diminish."

 

Thus we rely on courts and independent judicial officers to remind the law makers to make laws that are valid, and behave lawfully in their business. They require that even man-made sovereign laws are subject to challenge if they breach international principles of human, social and economic rights enshrined in treaties and covenants; and that the temptation to corruption must always be deterred from being made fact.

These limits were won during the great early days of the Common Law's development, after a civil war over 'the divine right of kings' and the intervention of local courts to protect the individual liberty of foreign-'owned' slaves.

We have had strong and very highly qualified women as judges in important roles before, most recently the two great women responsible for the NSW corruption body which vexed the NSW government by pursuing its office holders and MPs for seriously questionable activities — albeit subject to disallowance by courts, where those conversations properly take place. We have seen how those governments respond when they control the legislature, in the case of ICAC's president, and MPs savage the finest woman leader of her kind, Professor Gillian Triggs of the Australian Human Rights Commission.

So I welcome the appointment of Susan Kiefel as chief justice of the High Court because her credentials are impeccable, her struggle to qualify typical of many a young woman without privileged financial circumstances, and because of her record of 16 years on the bench and in service of the Federal Court before she was appointed to the High Court eight years ago. She has a first class brain and self possession as well as a judicial vocation. These are facts that patronising remarks on her studying part time as a 'legal secretary' to get her first qualifications, and on her marital and maternal status, can't diminish.

 


Moira RaynerMoira Rayner is a barrister and writer.

Topic tags: Moira Rayner, Susan Kiefel


 

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Existing comments

“She is even more important to this solidity than any prime minister, governor-general or populist hero. She represents the rule of reason and precedent and hard won wisdom and sensibility”; “The rule of law is a once-radical principle that no power can never be absolute.” Which is just as well that Chief Justice Kiefel will be retired from the High Court somewhere towards the end of what would be Donald Trump’s second and last term in case she (and The Donald) forgets the second quote. Which begs the question of why we are setting up the youngster James Edelman for twenty eight years at the heart of judicial power. All you need to do is appoint four judges of like mind who are in their forties and the absolute power to construe the Constitution will be sewn up in an echo chamber for decades. It’s just as well we don’t have, like the US, a constitutionalised Bill of Rights. If executives and legislators serve terms so the people can hold them to account, something should be put in place against unelected High Court judges becoming gods, perhaps a convention as to minimum age of appointment.
Roy Chen Yee | 30 November 2016


An excellent reminder of the Separation of Powers. Queensland authorities who so many times made light of this separation have left a sea of life destroying injustices in their wake - witness the Fitzgerald Inquiry. The conviction of Bill D'Arcy is the worst example in my personal experience -- http://www.apersonalhistory.com/Bill_D'Arcy/ . Thanks Moira.
Dallly Messenger III | 01 December 2016


Well said, Moira. But surely "PR spinsters" in the opening paragraph is a typo!
Chris Watson | 01 December 2016


Fully support the appointment as it represents the recognition of a true achiever with outstanding knowledge,skill and commitment to the legal system. A great decision and I applaud the comments of Moira Rayner !!
Maurice Sheehan | 01 December 2016


This is a very powerful article honouring an excellent, well deserved new High Court Chief Justice. It matters that we have a person of high integrity and intelligence to fulfil this role and in the appointment of Susan Kiefel we also have an excellent role model for women of the future.
Pauline Sheehan | 01 December 2016


There is an Old English Saying from the days when pubs were advertised with a bush in front of them 'Good wine needs no bush'. I suggest Susan Kiefel is a bit like that.
Edward Fido | 02 December 2016


PR'Spinster' was my little joke about irrelevance of marital status to public function.
Moira | 02 December 2016


Well said indeed. We do need competent, gifted legal minds to rule on matters of great importance in our High Court. May she continue to serve the judicial office with distinction.
Ern Azzopardi | 02 December 2016


All new to me, well put, good news. We need an intelligent judicial balance of gender and judiciary, in a democratic, government and society. May both Susan and Moira continue their good form.
Frank Vavasour | 02 December 2016


Loved the word play of "PR Spinsters", which is quite appropriate as they represent a group whom no one would willingly spend their life with! But, “The rule of law is a once-radical principle that no power can never be absolute.” This seems to fall into the trap, which my esteemed English teacher deplored, of reversing the meaning by use of a double negative. Just remove the "n" from "never" and the world is good again.
Vin Victory | 05 December 2016


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