Josephine Kelly

From: The Australian May 13, 2011 12:00AM

AUSTRALIAN National University academic Desmond Ball recently highlighted one little-known feature of the life of former High Court judge Herbert Vere Evatt.

When he was minister for external affairs in the late 1940s, Evatt either knew about or turned a blind eye to alleged Soviet agents in his office.

Evatt was a Labor member of the NSW parliament from 1925 to 1930, a justice of the High Court of Australia from 1930 to 1940 and a member of the House of Representatives from 1940 to 1960, where he held offices including attorney-general, minister for external affairs and leader of the opposition. He was chief justice of the Supreme Court of NSW from 1960 to 1962.

Coincidentally, the recently released book Red Silk: The Life of Elliott Johnston QC, by Penelope Debelle, describes the life-long association of its subject with the Communist Party of Australia.

According to his biographer, Johnston resigned from the party with “much mental and emotional upset” on his appointment to the Supreme Court of South Australia in 1983, and when he retired from the bench in 1988 he “looked forward to becoming a communist once more”.

But he received an invitation to join the then recently appointed Commonwealth Royal Commission into Aboriginal Deaths in Custody, which he accepted. Debelle says that at the age of 92 Johnston is still a communist.

Evatt and Johnston are striking examples of the appointment to the bench of serving politicians or true-believing members of a political party. Such appointments are not common today.

In the early years of the High Court, previous experience as a politician was usual among those appointed as chief justice or justice.

The first three chief justices of the High Court had been politicians before taking judicial office — Sir Samuel Griffith, Sir Adrian Knox and Sir Isaac Isaacs.

Sir John Latham, in 1935, and Sir Garfield Barwick, in 1964, were both appointed from the federal parliament to the position of chief justice.

The first four justices (other than those who became chief justice) of the High Court also had been politicians: Sir Edmund Barton, Richard O’Connor, Henry Bournes Higgins and Sir Charles Powers. Sir Edward McTiernan, the longest serving justice of the court, was appointed in 1930 when he was a member of the House of Representatives. He had previously been a member of the NSW parliament, serving two terms as attorney-general. He retired in 1976.

The most recent appointment to the High Court of a serving politician was the appointment of then Labor senator Lionel Murphy as a justice in 1975. He died while still on the court, but after great controversy, in 1986. His contribution to the jurisprudence of the court is debatable. But as justice Michael Kirby wrote in 1997, Murphy’s opinions have had influence at least in relation to the greater use and consideration of international law, cases outside the appellate courts of Britain, human rights materials, law reform reports and explanatory material now sanctioned by statute, and of the constitutional role of the court, which has been enunciated apace in more recent years.

The more important contribution Murphy made has been described by Kirby in different ways. In 1993, Kirby said that Murphy’s “ultimate judicial legacy lies in his contribution to breaking the spell of unquestioning acceptance of old rules, where social circumstances and community attitudes have changed so much as to make those rules inappropriate or inapplicable”.

And in 1997 he said that “Murphy’s influence may have been more subconscious or subliminal than direct . . . I have no doubt that he was an early herald of an important creative period in the work of the High Court of Australia”, that is, the “creative” period of the Mason Court.

Lionel Murphy’s influence was that of an iconoclast. He broke the rules to give expression to his political views. The ending of appeals from the states to the Privy Council in 1986 left the High Court as the final court of appeal for Australian jurisdictions. Influenced by Murphy’s iconoclasm, and free of oversight, like children after leaving home, the Mason Court spread its wings.

Josephine Kelly is a Sydney barrister.

Please let me welcome guest columnist Josephine Kelly, a friend of mine who has had an extensive practice at the Sydney Bar in Land and Environment Law. Her article on water use was published in the Australian Financial Review on the 16th November. It is well worth reading as is another recent article she wrote for The Australian called Climate change sceptics lose battle as onus of proof shift.

No political party or Independent member in the Federal parliament is being honest with the people of the Murray-Darling Basin and the Australian public. The Water Act puts the environment first when allocating water in the Murray-Darling Basin. Social and economic considerations are not relevant to deciding how much water the environment needs. Water available for human use is what is left.

That is why the reductions in allocations for human use published by the Murray-Darling Basin Authority (the MDBA) in its Guide, were so large, and will be in the final Plan, unless the Act is amended. But Federal politicians, Government, Opposition, and Independents, are going along with Minister Tony Burke’s “triple bottom line”, that environmental, economic and social considerations are central to the legislation.

Minister Burke has implicitly acknowledged that social and economic considerations are not relevant when determining the water allocation for the environment. When he tabled legal advice in the House of Representatives on 25 October 2010, he said that the Act provides for the establishment of environmentally sustainable limits on the quantities of water that may be taken from the basin water resources, and subject to those limits, the Act maximises the net economic returns to the Australian community.

The legal advice he tabled also indirectly acknowledged that reality. That advice, entitled “The Role of Social and Economic Factors in the Basin Plan”, begins: “This paper examines the ways in which the Murray Darling Basin Authority and the Minister are required to take into account social and economic factors in developing and making the Basin Plan, and the relationship between social-economic factors and the implementation of international environmental agreements.

Critically, the Minister’s legal advice did not consider when social and economic factors are not to be taken into account. Section 23 says that long-term average sustainable diversion limits (water for human use) “must reflect an environmentally sustainable level of take”. The advice says that s 23 requires the MDBA and the Minister to determine the “key environmental assets” that have to be sustained. It then gives an example of how the object of optimising economic, social and environmental outcomes could be relevant to deciding what are key environmental assets: “The MDBA and the Minister could not identify an environmental asset as key if this was not necessary to achieve the specific requirements of the Act and would have significant negative social and economic effects.”

In other words, if an environmental asset is necessary to achieve the Act’s specific requirements, all of which relate to the natural environment, it will be a key asset, and social and economic considerations are not relevant.

The advice does not consider the next step required by section 23, the determination of the water allocation necessary to ensure those assets are not compromised. That is consistent with its limited scope of only considering when social and economic considerations are to be taken into account. They are not to be taken into account when deciding the water allocation for the environment. The advice summary says: “… where a discretionary choice must be made between a number of options the decision-maker should, having considered the economic, social and environmental impacts, choose the option which optimises those outcomes.” Section 23 is not discretionary. There are no options when determining the water the environment needs. The environment is the only consideration.

It would be irresponsible for the MDBA to proceed, and for Tony Burke and the Government to allow it to proceed with the preparation of the Plan, taking into account social and economic considerations when deciding the water allocation for the environment. The validity of a Plan prepared on that basis would be open to legal challenge – successfully in my view.

Tony Abbott’s Opposition apparently cannot admit that legislation enacted by the Howard Government gave priority to water for the environment.

Josephine Kelly is a Sydney barrister.