Media

High Court gains a straight shooter

The Australian Financial Review - 23 September 2005
By Marcus Priest

In her 20 months as a Federal Court judge, Susan Crennan did little to reveal what kind of High Court judge she will be over the next 10 years. Those combing over judgements will have scant evidence from which to divine clues about which way the new High Court judge will lean on controversial matters.

Her judgements show few signs of her own views. They are carefully reasoned she has an eye for detailed statutory analysis with few flourishes. "In the final analysis, a court must discern the legislative intention in a particular statutory provision by reference to the purpose, language and context of the provision," Justice Crennan said earlier this year in the case of VBAS v Minister for Immigration.

There are no signs of her literary background, which she demonstrated penning the following prose for a recent graduation ceremony at Melbourne University encouraging students to be open to "new ideas, new science, new technology, new art, new music, new directions".

"Creativity expresses ideas in word, pigment or pixels and education, habits of reflection and powers of analysis allow exchanges of ideas without strife. Intellectual combat, of a constructive kind, is necessary to all the subtle accommodations in life being doctrinaire," she said.

While she has long kept her politics a closely-guarded secret, a close friend and former colleague at the bar said she could best be described as centre or centre-right, but pragmatic.

In conservative Melbourne, with its tradition of private clubs and an entrenched establishment, she displayed a strong aversion to WASP-ish tendencies and prejudice. She was only occasionally briefed by the big end of town, but was regularly retained by the commonwealth and state governments. She was a very formidable advocate.

Her written and oral submissions were known for their brevity and she would inevitably identify the critical issues in a trial, no matter how long or complicated.

She constituted an integral part of the intellectual powerhouse on the 17th floor of Owen Dixon Chambers, together with Mark Weinberg QC (as he then was), Frank Costigan QC and Joe Santamaria QC.

Although a highly experienced senior Victorian barrister, Justice Crennan took judicial office well into her career when Attorney-General Philip Ruddock made her one of his first judicial appointments.

However, judicial inexperience has been a characteristic of other High Court appointments, including Dyson Heydon, who spent only three years on the NSW Supreme Court before being elevated.

Similarly, over the last 30 years Garfield Barwick, Lionel Murphy, Keith Aickin, Mary Gaudron and Ronald Wilson came to the High Court without substantial judicial experience.

But The Australian Financial Review understands Justice Crennan's name was first put forward by the Kennett government in Victoria for appointment to the High Court long before she was appointed to the Federal Court.

As with any junior Federal Court judge, Justice Crennan handled a mix of routine disputes, ranging from intellectual property and patent cases, administrative law and immigration, reflecting her general commercial practice at the bar.

But even in her short time on the bench there were small, albeit ambiguous, clues to her character.

She has had outspoken views against affirmative action in the legal profession. But her decision in the case Jacomb v Australian Municipal Administrative Clerical and Services Union sits at odds with those views.

In that case, a union member claimed rules providing that 50 per cent of delegates to the union's state council and to the national council were women, were in breach of the Sex Discrimination Act.

Jacomb argued that the quotas were inflexible as there was no allowance for particularly worthy or popular males and did not constitute a "special measure" under the act. Justice Crennan rejected his application.

"The phrase 'special measure' is wide enough to include what is known as affirmative action. A special measure may on the face of it be discriminatory but to the extent that it has, as one of its purposes, overcome discrimination, it is to be characterised as non-discriminatory," she said.

Contrast this statement with her comments to The Age newspaper in 1992 in which she decried affirmative action in the legal profession.

"They [feminists] want to be compensated for the fact that women have come to the professions late by having an accelerated rite of passage to the top echelons. I think that's wrong."

In 2003, Justice Crennan also chaired a session at the national conference of the Institute of Arbitrators & Mediators Australia, entitled "Does Gender Matter?"

"In my own experience the emergence of women in the legal profession, as well as in other professions, has occurred somewhat in parallel with the emergence of the alternative dispute resolution as a permanent feature of the justice system," she said.

Justice Crennan's decision in VSAI v Minister for Immigration last year, is also of interest. She overturned a Refugee Review Tribunal finding that there was insufficient incidence of sexual abuse on which an Eritrean woman could base a fear of returning to serve in the army.

"There can be no doubt that a single act of rape or sexual abuse resulting in impregnation of a female draftee by a military officer (resulting in being shunned thereafter by family) when many such examples have occurred before with female draftees, is 'systematic' in that it is non-random and so oppressive that the applicant could not be expected to tolerate it," she said.

"It is not necessary for an applicant to show that the seriously harmful conduct has occurred on a scale which might answer to the description of an atrocity."

We gratefully acknowledge the permission from Marcus Priest and The Australian Financial Review to reprint this article.