Former High Court of Australia judge Michael McHugh (1989-2005) said in 2009 of the then High Court judge William Gummow (1995-2012) “Gummow is a great judicial politician,” and “He always had three votes.” This is a statement straight from the horse’s mouth so to speak and takes one into the heart of the highest court in the land. (Click here to read more)
It would have to be one of the biggest statements that any judicial officer has ever made and it cannot go undocumented on this site. How can we trust the High Court to hand down true and just judgements when there was until last year and possibly still is a voting block by some of the judges.
Seven judges sit on the High Court of Australia and the public would like to believe that they think and act independently of each other and make their decisions based on their own interpretation of the law. From what Michael McHugh says they clearly do not.
There has always been strong argument in the US that the judges that sit on their highest court, the Supreme Court of the United States, hand down judgements based on which political party appointed them in matters before the court that have a political influence. The same is sometimes said here in relation to the High Court. But that is not an argument we need to have at this point because if the statement of Michael McHugh is true and correct then there was a voting block in the High Court of Australia which may still exist.
Whether that voting block was or is along political lines is an issue but the biggest issue is that there was a voting block at all which has to leave the average person very disturbed. How many cases were prejudged before they ever reached hearing at the High Court of Australia?
Michael McHugh’s statement is consistent with what the recently retired High Court judge Dyson Heydon (2003-2013) has been quoted as saying:
“Retired High Court judge Dyson Heydon has fired a parting salvo at his fellow judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence.”
“In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled ”The enemy within”, published in the Law Quarterly Review.”
And: ”In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment – a closure by members of the court of their minds too early, before word of oral argument has been uttered,” Mr Heydon wrote (Click here to read more)
It is regularly said that the politicians make the laws and the courts only interpret the laws. Well that is not true. How the courts interpret the legislation that the politicians pass through parliament is itself making the laws. At times you will hear politicians critical of the courts, including the High Court, on how they have interpreted the legislation. Courts make laws everyday. It is what is known as common law which are the precedents that the courts set.
The High Court of Australia, being the highest court in the land, is the final place for determining what the common laws will be, which lower courts are meant to follow. The decisions can have a huge influence not only on the country but also individual cases in the lower courts. To have a situation where there is a voting block on the High Court can have a major negative influence on the country and individuals.
Special Leave to Appeal
To appeal to the High Court of Australia you need to be granted what is called Special Leave to Appeal. It is worth looking at this especially when considering the voting block that was alleged in the High Court by Justice McHugh. It says on Wikipedia:
“The High Court’s appellate jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court.”
“However, section 73 allows the appellate jurisdiction to be limited “with such exceptions and subject to such regulations as the Parliament prescribes”. Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903. This requires “special leave” to appeal. Special leave is granted only where a question of law is raised that is of public importance; or involves a conflict between courts; or “is in the interests of the administration of justice”. Therefore, while the High Court is the final court of appeal, it cannot be considered to be a general court of appeal. The decision as to whether to grant special leave to appeal is determined by one or more Justices of the High Court (in practice, a panel of two or three judges). That is, the Court exercises the power to decide which appeal cases it will consider.” (Click here to read more)
The key part is that Special Leave to Appeal is determined by two or three judges. Now if William Gummow had three votes he could always count on (his own and two others) as McHugh has said then Gummow had a lot of power to block cases ever being heard by the High Court. And that is what I understand he did, which one particular case I know of shows, but more on that in the future as I do not want to take the focus off the voting block that McHugh alleges, which is something I believe requires further investigation by the federal parliament.
I was critical of Michael McHugh’s appointment as a High Court judge in the second post that I published on this site, given his wife was a federal Labor politician at the time of his appointment. (Click here to read the post) But he should be applauded for having the courage to say what he did about William Gummow and his voting block. McHugh would not have won many friends in the judicial fraternity for saying that but he has given the public an insiders viewpoint on how the High Court of Australia really operates.
This is not the longest post on this site but I believe one of the most important. It is not everyday that you get insiders telling it like it is, especially former judges of the High Court of Australia.
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