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.